Citation Nr: 21064304 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-48 906 DATE: October 19, 2021 ORDER Entitlement to a compensable rating for the left knee disability, limitation of flexion is denied. Entitlement to a rating in excess of 10 percent for a left knee disability, limitation of extension is denied. REMANDED Entitlement to service connection for bilateral pes planus is remanded. FINDINGS OF FACT 1. The evidence indicates that the Veteran's left knee disability manifests, at worst, in flexion limited to 60 degrees and painful motion. 2. The evidence indicates that the Veteran's left knee disability manifests, at worst extension limited to 0 degrees, and painful motion. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for left knee disability, limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5260, 5258-5263 (2020), 5257 (2020), (2021). 2. The criteria for a rating in excess of 10 percent for a left knee disability, limitation of extension, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5260, 5258-5263 (2020), 5257 (2020), (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Coast Guard from May 1978 to June 1987. In October 2019, the Board remanded the appeal for further development. Increased Rating 1. A compensable rating for left knee disability, limitation of flexion 2. A rating in excess of 10 percent for a left knee disability, limitation of extension The Veteran contends that his left knee disability is such that a higher rating is warranted. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202(1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a. The rating criteria for musculoskeletal disorders under 38 C.F.R. § 4.71a were amended, effective February 7, 2021 [Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453-69 (November 30, 2020)]. Under Diagnostic Code 5260, a 10 percent rating is warranted when flexion is limited to 45 degrees. 38 C.F.R. § 4.71a. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion of the leg is limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A maximum rating of 50 percent is warranted for extension limited to 45 degrees. Under Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. Removal of symptomatic semilunar cartilage warrants a 10 percent rating under Diagnostic Code 5259. Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes, 5258, 5259, 5260, and 5261) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. As an initial matter, the Board notes that the evidence in this case does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis. As such, those diagnostic codes are not for application. Under the regulations in effect prior to 2021, recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5257 was substantially revised in 2021. Under the revised regulations, patellar instability is rated as 10 percent disabling for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). Turning to the evidence, in an April 2016 VA examination, The Veteran reported that his left knee condition had gotten worse. The Veteran indicated that he had flare-ups of left knee that he described as pain and stiffness. The Veteran also reported functional loss described as pain and stiffness. The examiner reported abnormal left knee range of motion as the following: flexion at 0 to 60 degrees, extension at 60 to 0 degrees. The examiner stated that range of motion itself does not contribute to functional loss. The examiner noted pain on flexion and extension that caused functional loss. The examiner also stated that there was evidence of pain with weight-bearing and objective evidence of crepitus. The examiner noted that there was no additional functional loss of the left knee after repetitive-use testing. The examiner reported that the Veteran's knee was examined immediately after repetitive use over time. The examiner stated that pain and lack of endurance significantly limit functional ability with repeated use over a period of time. The examiner described this limitation in terms of range of motion as the following: flexion at 0 to 60 degrees, extension at 60 to 0 degrees. The examiner reported that the Veteran's left knee was examined during a flare-up. The examiner stated that pain and lack of endurance significantly limit functional ability during flare-up. The examiner described this limitation in terms of range of motion as the following: flexion at 0 to 60 degrees, extension at 60 to 0 degrees. The examiner further stated that less movement than normal and interference with standing were additional contributing factors of the disability. The examiner reported normal muscle strength and no muscle atrophy of the left knee. The examiner noted that there was no evidence of ankylosis. The examiner noted that there was no recurrent subluxation, lateral instability, or history of recurrent effusion. The examiner reported no meniscus condition. The examiner reported a left knee scar measuring 1 cm by 0.5 cm. The examiner noted that the scar is neither painful nor unstable. The examiner stated that the Veteran's left knee condition caused functional impact in that it resulted in pain with prolonged standing and physical activity. In a January 2020 VA examination, the Veteran reported that since his left knee surgery his knee has been stable, but he has pain with flexion of the knee and usually keeps the knee mostly extended while seated. The Veteran denied flare-ups. The Veteran did report functional loss, described as increased pain with knee flexion, increased pain with standing for approximately an hour, and a need to stretch if sedentary for more than one hour. The examiner reported abnormal left knee range of motion as the following: flexion at 0 to 90 degrees, extension at 90 to 0 degrees. The examiner stated that range of motion itself does not contribute to functional loss. The examiner noted pain on flexion that caused functional loss. The examiner also stated that there was no evidence of pain with weight-bearing and objective evidence of crepitus. The examiner noted objective evidence of tenderness to palpation across anterior left knee. The examiner found no objective evidence of pain on passive range of motion testing or when the joint is used in non-weight bearing. The examiner noted that there was no additional functional loss of the left knee after repetitive-use testing. The examiner reported that the Veteran's knee was not examined immediately after repetitive use over time. The examiner stated that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner also reported that pain significantly limits functional ability with repeated use over a period of time. The examiner described this limitation in range of motion as the following: flexion at 0 to 85 degrees and extension at 85 to 0 degrees. The examiner reiterated that the Veteran did not report flare-ups. The examiner noted reduced muscle strength described as active movement against some resistance in flexion and extension. The examiner stated that there is no muscle atrophy of the left knee and no evidence of ankylosis. The examiner noted that there was no recurrent subluxation, lateral instability, or history of recurrent effusion. The examiner reported the Veteran's 2010 meniscotomy. The examiner also reported a left knee scar measuring 0.5 cm by 0.5 cm. The examiner further noted Veteran has two scars at arthroscopic sites, medial and lateral left knee both measuring 0.5 cm by 0.5 cm. The examiner noted that the scar is neither painful nor unstable. The examiner reported functional impact described as increased knee pain with prolonged standing or sitting. After review of the record, the Board finds that a compensable rating for left knee limitation of flexion and a rating in excess of 10 percent for a left knee disability, limitation of extension, are not warranted. During this period, the evidence indicates range of motion, at worst, as flexion limited to 60 degrees and extension of 0 degrees. There is no evidence of flexion limited to 30 degrees or extension that was less than full. Moreover, during this period, there is no evidence of recurrent subluxation, ankylosis of the knee, instability, or cartilage dislocation or removal. Thus, a separate rating for these conditions is not warranted at any point of the appeals period. Therefore, a 10 percent rating is appropriate. As provided above, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant criteria when evaluating limitation of motion for joint disabilities. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca at 202. However, even when considering reported functional impairment during repetitive use over time and flare-ups, the evidence does not demonstrate that the Veteran's limited left knee flexion and extension more nearly approximated the next higher ratings for any stages during the appeal period. Thus, consideration under DeLuca has been provided and additional consideration for higher ratings is not warranted for all periods on appeal. DeLuca v. Brown, 8 Vet. App. 202 (1995). In reaching this decision, the Board has considered the Veteran's lay statements. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the rating now assigned. To the extent he conrends his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted. REASONS FOR REMAND Service connection for bilateral pes planus is remanded. The Veteran contends that his current bilateral pes planus is due to his period of service. Specifically, the Veteran contends that his preexisting bilateral pes planus was aggravated by his period of service. In a January 2020 VA examination, the examiner opined that it is less likely than not that the Veteran's preexisting pes planus was aggravated beyond natural progression during his active duty service. While the Board acknowledges this opinion, the standard for the presumption of aggravation. The examiner must determine whether is clear and unmistakable evidence that the Veteran's pre-existing bilateral pes planus was aggravated during his period of active duty service. Therefore, a remand is necessary. The matters are REMANDED for the following action: (Continued on the next page) Send the Veteran's claims file to an appropriate examiner to determine the nature and etiology of the Veteran's bilateral pes planus. The examiner should review the claims file. After review of the file, the examiner is asked to address the following: Whether there is clear and unmistakable evidence that the Veteran's pre-existing bilateral pes planus was not aggravated beyond natural progression during service. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ford 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.