Citation Nr: 21066175 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-15 358 DATE: October 28, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee strain is denied. FINDING OF FACT At all times relevant to the decision, left knee strain has manifested by painful motion without flexion limited to 45 degrees or less. Extension is not limited, there is no left knee instability, and there are no other compensable manifestations. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent have not been met at any time for left knee strain. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2007 to May 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A transcript of the hearing is of record. During the hearing, the VLJ clarified the issues on appeal, clarified the concept of increased rating claims, identified potential evidentiary defects which included the severity of the Veteran's service-connected disabilities on appeal, clarified the type of evidence that would support the Veteran's claims, enquired as to the existence of potential outstanding records, and held the record open for 60 days for the submission of additional evidence. These actions complied with the duties owed during a hearing set forth in 38 C.F.R. § 3.103. The Board remanded this claim in March 2019 for a new VA examination to reflect the severity of the Veteran's left knee disability, which was provided in June 2019. The Board remanded this claim again in June 2021 to provide a VA examination that considered new diagnostic criteria for knee disabilities that had become effective February 7, 2021, specifically to Diagnostic Code 5257 relating to instability of the knee. A new VA examination was provided in September 2021. The prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. Joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Under 38 C.F.R. § 4.14, the evaluation of the "same disability" is to be avoided. 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). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Left knee strain. Service connection was granted for left knee strain in a March 2012 rating decision, and a 10 percent evaluation was assigned under Diagnostic Code 5260, which pertains to limitation of flexion of the leg. Under Diagnostic Code 5260, flexion limited to 60 degrees or greater warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants the maximum 30 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The current 10 percent evaluation was assigned pursuant to 38 C.F.R. § 4.59. The 10 percent evaluation contemplates pain on motion and is consistent with flexion limited to 45 degrees. To warrant a higher evaluation under Diagnostic Code 5260, the left knee strain must approximate the functional equivalent of flexion limited to 30 degrees or less. 38 C.F.R. § 4.7. Separate evaluations may be assigned for compensable limitations of extension, instability, subluxation, or meniscus impairment. Diagnostic Code 5261 rates based on limitation of extension of the leg. A noncompensable rating is assigned when extension is limited to 5 degrees. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. Separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260 and a compensable limitation of extension under Diagnostic Code 5261. The Board remanded this matter in June 2021 to determine whether the Veteran had left knee instability. Diagnostic Code 5257 provided a 10, 20, or 30 percent ratings for slight, moderate, or severe recurrent subluxation or lateral instability of the knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, including Diagnostic Code 5257. The new version of Diagnostic Code 5257 provides, in pertinent part, that for recurrent subluxation or instability of the knee, a 10 percent rating for a 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 assigned 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; (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 30 percent rating is assigned for recurrent subluxation or instability when there is an 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. See 85 Fed. Reg. at 76463. Alternatively, the new version of Diagnostic Code 5257 provides that for patellar instability, a 10 percent rating 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. Id. After considering the evidence, the Board concludes that a rating higher than 10 percent for the left knee is not warranted. The Veteran was provided a VA knee examination in July 2011. The Veteran reported daily left knee pain that was aggravated by moving up stairs and bending the knee. He did not use a brace, and the knee had not collapsed. Physical examination showed flexion to 130 degrees and extension to zero degrees. Stability tests were negative for instability. There was no reduction in range of motion after three repetitions, and weakness, pain, fatigability, or loss of coordination did not result in any further loss of motion. There was no swelling. The examiner noted the Veteran reported continuous daily pain rather than flareups. He was provided another VA examination in January 2013. He reported constant knee pain and, regarding flareups, the knee pain affected squatting, walking, stretching, kneeling, and prolonged periods of sitting and standing. Initial range of motion testing showed flexion to 140 degrees and extension to zero degrees with pain on both. There was no further loss of motion after three repetitions or with repetitive use. Muscle strength was 5/5 on flexion and extension and there was pain on palpation. Joint stability tests were normal for the left knee, and no history of patellar subluxation or dislocation was noted. The Veteran reported frequent episodes of both knees locking. He reported that he occasionally used a brace for knee pain. The Veteran testified at a Board hearing in October 2018. The Veteran reported that his left knee had worsened since his last VA examination, that the knee swelled with exercise, and cracked and popped. He also testified that his left knee felt less stable and that it would not hold his weight. The Board remanded the claim in March 2019, and the Veteran was provided a VA examination for his left knee in June 2019. He reported persistent pain and swelling exacerbated by physical activities. Other symptoms included popping, clicking, grinding, and he stated the knee gives way when using stairs or stepping down from curbs. The Veteran also reported some left knee weakness. Initial range of motion testing showed flexion to 140 degrees and extension to zero degrees. The examiner noted no objective evidence of pain on active or passive range of motion, and no pain with weightbearing and non-weightbearing was noted. There was crepitus. Three repetitions and repeated use over time did not cause any loss of range of motion. Muscle strength was 5/5 and there was no muscle atrophy or ankylosis. The examiner noted no history of subluxation, instability, or effusion, and joint stability tests were normal. No meniscus conditions were noted, and the Veteran did not use any assistive devices. The Board remanded the matter again in June 2021 to provide a VA examination that considered new diagnostic criteria under Diagnostic Code 5257 relating to instability of the knee, and the examination was provided in September 2021. The examiner diagnosed left knee strain and left knee patellofemoral pain syndrome. The Veteran reported constant pain that intermittently worsened with weekly flareups caused by activities such as using stairs and stepping from curbs. He also reported the left knee "goes out" at times and that he could not exercise or do physical activity without pain. Initial active and passive range of motion testing showed flexion to 140 degrees and extension to 0 degrees with pain on both flexion and extension. The examiner found no evidence of pain on weightbearing or non-weightbearing. After three repetitions pain limited flexion to 130 degrees with extension to 0 degrees. The examiner estimated that pain would also limit flexion to 130 degrees with repetitive use over time and during flareups. There was crepitus and tenderness to palpation. The examiner determined there was not recurrent subluxation or persistent instability, that there was not recurrent patellar instability, and that there had not been a ligament tear or sprain. No assistive devices were reported. No meniscus conditions were noted. The examiner determined the Veteran's left knee disability caused limited capacity for carrying heavy objects and moderate weight repeatedly, and caused reduced capacity for tasks requiring prolonged standing, walking, repeat bending, squatting, kneeling, and climbing. A separate opinion states there was no evidence of instability during the examination. Here, a rating in excess of 10 percent for limited flexion of the left knee is not warranted under Diagnostic Code 5260. A 10 percent evaluation is consistent with pain on motion and/or flexion limited to 45 degrees. To warrant a higher evaluation, there must be the approximate equivalent of flexion limited to 30 degrees. Here, each VA examination showed that flexion of the left knee was painful. However, flexion has always been greater than 45 degrees. The September 2021 examiner determined that left knee flexion would be limited to 130 degrees with repetitive use and during flareups. Initial range of motion measurements have been to 130 or 140 degrees throughout the period on appeal. As noted above, the 10 percent evaluation was initially assigned in the March 2012 rating decision consistent with 38 C.F.R. § 4.59, which provides for a compensable rating for painful motion that did not otherwise meet the criteria for a higher compensable rating based on limitation of motion under Diagnostic Code 5260. Nothing in the record, lay or medical, suggests that flexion is functionally limited to less than 45 degrees. No evidence establishes flexion limited beyond 45 degrees, even accounting for flareups. Even considering the Veteran's lay statements that his knee worsens during flareups and with physical activities, there is no indication that such impairment would cause his left knee flexion to more closely approximate 30 degrees or less. The preponderance of the evidence shows the Veteran has painful flexion of the left knee, but that remaining functional flexion is better than 45 degrees. A higher rating is not warranted based on functional loss due to pain, weakness, fatigability, or incoordination. We have considered the Veteran's reports of functional impairment in assessing the limitation of motion in this claim, including his reports of flareups causing increased pain and decreased range of motion. However, the evidence does not suggest that pain, weakness, fatigability, or incoordination result in disability beyond the ratings assigned. There is little credible evidence of a higher level of impairment caused by flareups or repetitive use beyond the impairment described by the VA examiners. Pertinently, the most recent September 2021 VA examination showed initial left knee flexion to 140 degrees, and the examiner estimated that repeated use and flareups caused flexion to drop to 130 degrees, both well above the threshold required for a 20 percent evaluation under Diagnostic Code 5260. No other VA examination shows any greater level of impairment. The flareups as described on the examinations are found to be consistent with and accurately compensated by his rating based on painful flexion. See De Luca, 8 Vet. App. at, 204-7; 38 C.F.R. §§ 4.40, 4.45, 4.59. We find that the observations of skilled examiner are more probative and more credible as to the degree of disability than the lay evidence, to the extent that the Veteran argues there is a higher level of left knee impairment, to include during flareups. The Board has considered the other Diagnostic Codes pertaining to the knee and leg. However, no other Diagnostic Code is applicable to the Veteran's left knee strain. Diagnostic Code 5256 is inapplicable as the Veteran does not have ankylosis of the left knee or the functional equivalent of same. The record also does not show malunion or nonunion of the tibia and fibula or genu recurvatum, and as such, separate disability ratings under Diagnostic Codes 5262 and 5263 are also not warranted. A separate rating under Diagnostic Code 5261 for limited knee extension would only be permitted where the limitation of extension was compensable, which is not the case here. No limitation of extension of the left knee has ever been shown on VA examinations, which all show full extension. Although VA examinations show the Veteran has had painful left knee extension, he has retained full extension to zero degrees throughout the period on appeal, even considering flareups and repetitive use. A noncompensable rating under Diagnostic Code 5261 requires extension to be limited to 5 degrees, which has not been shown. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. We also note that the Veteran is already in receipt of at least the minimum compensable rating for painful motion under Diagnostic Code 5260 pursuant to the terms of 38 C.F.R. § 4.59, which allows painful joints to be compensated at the minimum compensable rating. A separate rating under Diagnostic Code 5261 is therefore not warranted for painful, full extension. Diagnostic Code 5258 provides a 20 percent evaluation for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Here, we acknowledge that the Veteran reported a history of frequent knee locking at the January 2013 VA examination. However, there is otherwise no evidence of any dislocated semilunar cartilage and each VA examination report is negative joint effusion. In addition, subsequent VA examination show no history of locking. Diagnostic Code 5259 provides a 10 percent evaluation for symptomatic removal of the semilunar cartilage. The Veteran has not had any semilunar cartilage removed from his left knee. As such, Diagnostic Codes 5258 and 5859 are inapplicable. As noted above, the Board remanded this claim in June 2021 to provide a new VA examination to determine whether the Veteran had left knee instability pursuant to the new or old versions of Diagnostic Code 5257. After reviewing the evidence, the Board concludes a rating for instability is not warranted under either version of Diagnostic Code 5257. The Veteran has reported or implied instability at VA examinations and the October 2018 Board hearing. However, none of the VA examinations or the Veteran's treatment records show any left knee instability. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). However, despite the Veteran's personal testimony about left knee instability, all medical evidence is negative for left knee instability. Repeat VA examinations have shown no instability of the left knee and there is otherwise no medical evidence showing left knee instability during the period on appeal. Each VA examiner found no history of recurrent instability or subluxation. The Board places much more probative weight on the results of these objective physical examinations and finds the Veteran's assertions that he has recurring left knee instability far less credible. The weight of the evidence showing no left knee instability or subluxation, including four VA examinations, vastly outweighs the Veteran's testimony. Regarding the new version of Diagnostic Code 5257, which is potentially applicable from February 7, 2021 forward, the Veteran does not qualify for a compensable evaluation under any of the new criteria. The most credible evidence shows there is no history of recurrent subluxation or instability of the left knee. The Veteran's left knee strain does not cause persistent instability as required for a 10 percent evaluation for subluxation or instability. Furthermore, there is no credible evidence that this causes any recurrent patellar instability. Although the Veteran reported during one VA examination that he used a brace on his left knee due to pain, there is no indication that a brace or any other assistive device has been prescribed for instability, and he has not had any surgical repair of the left knee. As such, the criteria for an evaluation for recurrent subluxation, instability, or patellar instability are not met. See 85 Fed. Reg. at 76463. In sum, the most probative evidence is against assigning a rating more than 10 percent rating for the Veteran's left knee strain. A separate rating besides the 10 percent evaluation for limited flexion is not warranted, as no other Diagnostic Code applies. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 55-56. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.