Citation Nr: 21064869 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-06 858A DATE: October 21, 2021 ORDER Entitlement to an evaluation greater than 10 percent for chronic synovitis of the left knee is denied. FINDING OF FACT The Veteran's chronic synovitis of the left knee is manifested with limitation of flexion at most to 120 degrees and extension to zero degrees, even considering painful motion and other factors. CONCLUSION OF LAW The criteria for an evaluation greater than 10 percent for chronic synovitis of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.27, 4.71a, Diagnostic Code 5020-5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from September 1989 to September 1992. He served in the United States Naval Reserve from October 1995 to October 1998. The Veteran also had a period of active service in the United States Army from November 4, 2006, to November 5, 2006. Finally, he had additional service in the Oregon National Guard. This matter is on appeal from a November 2010 rating decision. In June 2018 and April 2021, the Board remanded the appeal for additional evidentiary development. In a July 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for hypertension, right shoulder acromioclavicular joint osteoarthritis, and left shoulder acromioclavicular joint osteoarthritis. This award constitutes a full grant of the benefits sought, and the appeal has been resolved regarding these issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Entitlement to an evaluation greater than 10 percent for chronic synovitis of the left knee. The Veteran contends that he is entitled to a higher rating for the service-connected chronic synovitis of the left knee. In March 2018, the Veteran testified that his left knee pain had increased and that he experienced instability when he walked up and downstairs. The Veteran's chronic synovitis of the left knee has been rated as 10 percent disabling under Diagnostic Code 5020-5260. He also has a separate 10 percent evaluation for left knee recurrent subluxation pursuant to Diagnostic Code 5257. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Diagnostic Code 5020 provides synovitis will be rated based on the limitation of motion of affected parts, and Diagnostic Code 5260 provides ratings for limited flexion of the leg. 38 C.F.R. § 4.71a. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The amended Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A maximum 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, a 10 percent rating is warranted 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 warranted 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 maximum 30 percent rating is warranted 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. Note (1) provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. 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 and, therefore, 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. See 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."). 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In September 2010, the Veteran was afforded a VA examination. Ranges of motion for the bilateral knees were from zero to 140 degrees. There was no lateral instability or subluxation. In July 2019 the Veteran was afforded another VA examination. The VA examiner diagnosed recurrent subluxation of the bilateral knees and arthritis of the bilateral knees. The Veteran denied flareups. However, he endorsed functional impairment with repeated use over time. He was precluded from prolonged standing, walking, stooping, kneeling and repetitive climbing of stairs. Range of motion studies showed flexion to 120 degrees and extension to zero degrees for the left knee. Pain was noted and caused functional loss. However, the VA examiner did not indicate at what point pain began. He was able to complete repetitive use testing without additional functional loss or range of motion. The VA examiner indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. There was a history of slight recurrent subluxation of the left knee. Joint stability testing for the left knee was normal. There were no other knee conditions noted. The VA examiner indicated that the Veteran's knee disability impacted his ability to perform occupational tasks that required prolonged standing, walking, stooping, kneeling and repetitive climbing of stairs. The Veteran did not require the use of assistive devices. In May 2021, the Veteran underwent his most recent VA examination. The VA examiner diagnosed chronic synovitis of the left knee. The Veteran denied flare-ups and functional impairment with repeated use of our time. He also denied instability or recurrent subluxation of the left knee and a history of frequent effusion. Initial range of motion studies were normal bilaterally with no evidence of pain. Passive ranges of motion were the same as active ranges of motion. The Veteran was able to complete repetitive use testing without additional loss of function or range of motion. The VA examiner indicated that pain, fatigability, weakness, lack of endurance, or incoordination which significantly limit functional ability with flare-ups. Joint stability testing was normal. The Veteran did not have tibial impairment, fibular impairment, or meniscal conditions. His knee disability did not impact his ability to work. The Veteran did not require the use of assistive devices. There are no other VA examinations of record. The Veteran VA treatment records are consistent with the examination findings. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for chronic synovitis of the left knee. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, instability, and repeated use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). As discussed above, has a separate 10 percent evaluation for left knee recurrent subluxation pursuant to Diagnostic Code 5257. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left knee recurrent subluxation. The Board has carefully considered the Veteran's reports about instability. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating moderate severity. The Veteran did not require the use of assistive devices. He only endorsed instability when he walked up and down stairs. Joint stability testing has been normal throughout the appeal period. Therefore, a 20 percent evaluation is not warranted under either version of Diagnostic Code 5257. Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are inapplicable as the Veteran's left knee disability has not been manifested by ankylosis, effusion, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, and genu recurvatum at any point during the appeal period. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for chronic synovitis of the left knee. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.R. Watkins, 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.