Citation Nr: 21004420 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-37 232 DATE: January 27, 2021 ORDER Entitlement to an initial 10 percent rating for a right knee disability, effective December 20, 2012 to November 13, 2013, is granted. Entitlement to a rating in excess of 10 percent for a right knee disability from November 14, 2013 is denied. A separate 20 percent rating for right knee “locking” effective March 11, 2015, is granted. FINDINGS OF FACT 1. The Veteran’s right knee disability was manifested by painful motion from December 20, 2012, the date of entitlement to service connection, to November 13, 2013. 2. Throughout the appeal period, for the Veteran’s right knee disability, there is no evidence of ankylosis of the right knee, no instability, no evidence of semilunar cartilage removal, no compensable limitation of flexion and extension that can form the basis for the assignment of a separate disability rating, no tibia/fibula impairments, and no genu recurvatum. 3. From March 11, 2015, the Veteran’s right knee disability has been manifested by painful “locking” of the right knee. CONCLUSIONS OF LAW 1. For the period from December 20, 2012 to November 13, 2013, the criteria for a rating of 10 percent for a right knee disability based on painful motion have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261. 2. The criteria for a rating in excess of 10 percent for a right knee disability have not been met for the period beginning November 14, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, DCs 5256, 5257, 5259-5263. 3. The criteria for a separate compensable disability rating for right knee “locking” have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2010 to December 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board videoconference hearing in November 2018. This matter was last before the Board in April 2019, when it was remanded for further development. This case raises no additional issues, other than those described below. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, as is the case here, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 could occur during flare-ups or after repeated use. 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). For an examination to adequately incorporate that requirement, examiners must provide an opinion as to whether pain significantly limits functional ability on use and during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board is also aware that the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 “creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.” Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the Court held that to be adequate, a VA examination of the joints must, wherever possible, include the results of range of motion testing on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, with the range of the opposite undamaged joint. Id. at 169-70. In this case, the Board finds the Veteran’s recent VA examination from January 2020 includes findings in compliance with Sharp and Correia. The Veteran asserts that his right knee disability is worse than what the current rating reflects. In this case, the Veteran was assigned an initial noncompensable rating, effective December 20, 2012. The Veteran was then assigned a 10 percent rating in April 2015, effective November 14, 2013, for his right knee based on findings of painful motion. See 38 C.F.R. §§ 4.59. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is considered to be compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. VAOPGCPREC 23-97. When X-ray findings of arthritis are present, and a veteran’s knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. VAOPGCPREC 9-98. Disabilities of the knee are rated under DC 5256 through DC 5263 of 38 C.F.R. § 4.71a. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees is rated 30 percent disabling; in flexion between 10 degrees and 20 degrees is rated 40 percent disabling; in flexion between 20 degrees and 45 degrees is rated 50 percent disabling; and extremely unfavorable, in flexion at an angle of 45 degrees or more is rated 60 percent disabling. 38 C.F.R. § 4.71a. Under DC 5257, recurrent subluxation or lateral instability is rated as 10 percent disabling when slight, 20 percent disabling when moderate, and 30 percent disabling when severe. 38 C.F.R. § 4.71a. Diagnostic Code 5258 provides a 20 percent disability rating for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. Ratings under DC 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98. For purposes of this decision, the Board notes that the average normal range of motion of the knee is flexion from 0 to 140 degrees and extension from 140 to 0 degrees. 38 C.F.R. § 4.71. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated at 0 percent disabling, flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated 0 percent disabling, extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5262 provides ratings for impairment of the tibia and fibula. A 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating is warranted for malunion with moderate knee or ankle disability. A 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion with loose motion and requiring a brace. 38 C.F.R. § 4.71a. Finally, DC 5263 provides a 10 percent rating if genu recurvatum is found. The Veteran has undergone three VA examinations during the appeal period. During an October 2010 VA knee examination, the Veteran reported flare-ups and pain in his knees, which impacted walking, bending over, and driving. Upon physical examination, right knee flexion was noted at 140 degrees or greater with no objective evidence of pain on motion. Extension was noted at 0 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with no post-test difference in range of motion (ROM). Muscle examination was reported as normal. Furthermore, there was no evidence of swelling, effusion, ankylosis, or any other abnormalities. The Veteran was assigned an initial noncompensable rating based on these findings. Although the October 2012 VA examination did not find objective evidence of painful motion, VA treatment records show the Veteran reporting right knee pain and seeking treatment for his symptoms since his discharge from service in December 2012 and consistently throughout the appeal period. The Board notes that the evidence of record reveals a factually ascertainable increase in the severity to the Veteran’s right knee disability prior to November 14, 2013, compared to the disability rated as noncompensable. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that the complaints of the Veteran regarding his right knee pain since his discharge from service establish that the Veteran is entitled to at least the minimum compensable rating for motion that is accompanied by pain based on the provisions of 38 C.F.R. § 4.59. Burton v. Shinseki, 25 Vet. App. 1 (2011). Therefore, a 10 percent initial disability rating is granted based on painful motion, effective prior to November 14, 2013. During a March 2015 VA knee examination, the Veteran reported decreased mobility due to his right knee symptoms. The Veteran reported flare-ups that require him to slow down and sit. Upon physical examination, right knee flexion was noted at 110 degrees. Extension was noted at 110 degrees to 5 degrees. Pain on motion was noted during flexion, extension, and weight bearing. The Veteran was able to perform repetitive-use testing with no post-test difference in ROM. Pain, fatigue, and lack of endurance were noted as causing functional loss during repeated use over time and flare-ups. ROM during flare-ups were noted as the same as above. The examination report noted frequent episodes of joint “locking” and joint pain in his right knee, as well as use of a cane on a regular basis to assist with walking. Muscle examination was reported as normal. Furthermore, there was no evidence of any other abnormalities such as swelling, effusion, or ankylosis. The Board assigns a separate 20 percent rating under DC 5258 based upon the March 2015 examination finding that the Veteran has frequent episodes of “locking” pain in his right knee. The Board notes that prior to March 2015 VA examination, the record does not show the Veteran reporting “locking” of his right knee. Therefore, the Board finds that the Veteran is entitled to a separate 20 percent rating for episodes of “locking” pain of the right knee, effective March 11, 2015. See 38 C.F.R. § 4.71a, DC 5258. During the January 2020 VA examination, the Veteran reported an increase in pain, including while walking and during prolonged standing. The Veteran did not report flare-ups. Upon physical examination, right knee flexion was noted at 110 degrees. Extension was noted at zero degrees. Pain on motion was noted during flexion, extension, and weight bearing. The Veteran was able to perform repetitive use testing with no post-test difference in ROM. Pain was noted as causing functional loss during repeated use over time. ROM after repeated use over time was noted as the same as above. The examination report noted frequent episodes of joint pain on his right knee, as well as using a cane to assist with walking on an occasional basis. Muscle examination was reported as normal. Furthermore, there was no evidence of swelling, effusion, or ankylosis. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent throughout the appeal period, as the record does not show he has compensable limitation of motion under DCs 5260 and 5261. In regard to Diagnostic Codes 5256, 5257, 5259, 5262, and 5263, the evidence shows an absence of ankylosis of the right knee, no right knee instability, no semilunar cartilage removal, no tibia/fibular impairments, and no genu recurvatum. Additionally, he is receiving the maximum rating for “locking” of the right knee under 5258 and has been assigned a separate rating by virtue of this decision. Thus, other than the separate 20 percent rating for “locking” pain of the right knee under DC 5258, the Veteran’s right knee has not shown symptoms that would warrant a higher rating under any of the other diagnostic codes. See 38 C.F.R. § 4.71a, DCs 5256, 5257, 5259-5263. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, 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.