Citation Nr: 21067820 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-26 485 DATE: November 5, 2021 ORDER An initial disability rating higher than 10 percent for the service-connected left knee strain (left knee disability) for the entire rating period is denied. A separate 20 percent disability rating, and no higher, for left knee instability, for the entire rating period from January 8, 2014, is granted. FINDINGS OF FACT 1. For the entire rating period from January 8, 2014, the left knee disability was manifested by left knee range of motion from 0 degrees in extension to 110 degrees in flexion or greater, including after consideration of functional loss due to repetitive use over time and during flare-ups. 2. For the entire rating period from January 8, 2014, the left knee disability has been manifested by use of a knee brace, and no more than moderate lateral instability shown on objective testing. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating higher than 10 percent for the service-connected left knee disability are not met or approximated for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate 20 percent disability rating, and no higher, for left knee instability are met for the entire rating period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from September 1979 to September 1989. This matter on appeal from an April 2015 rating decision. In October 2018, the Board remanded the appeal for another VA examination to determine the severity of the left knee disability and considers range of motion in active and passive motion and in both weight-bearing and non-weight-bearing. In April 2021, the Board found that September 2019 VA examination was inadequate because it did not adequately address flare-ups, so remanded the appeal for another VA examination that addressed the severity, frequency, and duration of any flare-ups of the left knee disability, as well as outstanding VA and private treatment records pertinent to the appeal. To comply with the prior remand directives, an April 2021 letter advised the Veteran to complete an enclosed authorization and consent form so that VA could obtain private treatment records identified as relevant to the appeal; however, the Veteran did not respond to the letter. In April 2021, VA treatment records were obtained. The April 2021 VA examination and August 2021 VA addendum adequately addressed flare-ups and were otherwise adequate for rating purposes, and the initial rating appeal was readjudicated in August 2021. For these reasons, the Board finds that there was substantial compliance with the prior remand directives. Disability Rating Legal Authority Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 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. 1. Initial Rating in Excess of 10 Percent for Left Knee Disability is Denied. For the entire initial rating period from January 8, 2014, the service-connected left knee disability is rated at 10 percent under the criteria at 38 C.F.R. § 4.71a, DC 5003 for degenerative arthritis. Although the assigned DC was 5260, the use of DC 5260 was an incorrect designation because the left knee disability did not actually manifest to a compensable (to 10 percent) degree of limitation of knee flexion. The 10 percent rating was assigned based on findings of painful, noncompensable limitation of motion, which is the criteria for a 10 percent rating for arthritis of a major painful joint under DC 5003. DC 5260 provides for a 0 percent rating when there is 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. DC 5261 provides for assignment of a 0 percent rating for extension limited to 5 degrees. A 10 percent rating for extension limited to 10 degrees. A 20 percent rating for extension limited to 15 degrees. A 30 percent rating for extension limited to 20 degrees. A 40 percent rating for extension limited to 30 degrees, and a 50 percent rating for extension limited to 45 degrees. 38 C.F.R. § 4.71a. Normal range of motion for the knee is from 140 degrees flexion to 0 degrees extension. 38 C.F.R. § 4.71, Plate II. After review of all the lay and medical evidence of record, the Board finds that the evidence weighs against finding that the criteria for an initial rating higher than 10 percent under DC 5003 for the left knee disability are met or approximated for any period. Throughout the increased rating period, the left knee disability was manifested by left knee range of motion from 0 to 110 degrees or greater, including after consideration of functional loss due to repetitive use over time and during flare-ups (i.e., causing difficulty walking for extended periods of time and ambulating stairs). Because the left knee disability was manifested by painful motion with limitation of forward flexion to a noncompensable degree under DC 5260, including after consideration of orthopedic limiting factors (38 C.F.R. §§ 4.40, 4.45, 4.59, Deluca), an initial rating higher than 10 percent under DC 5003 for the left knee disability is not warranted for any period. Additionally, because left knee extension is normal (i.e., to 0 degrees), there is no limitation of left knee extension to a compensable (10 percent) degree; therefore, a separate rating under DC 5261 for limitation of left knee extension is not warranted in this case (separate from a rating under DC 5260). See VAOPGCPREC 9-2004. DC 5256 allows for higher potential ratings (with a maximum 60 percent rating) for ankylosis. The evidence shows no left knee ankylosis; therefore, DC 5256 does not apply. Also, the evidence shows no genu recurvatum, and the maximum disability rating under DC 5263 is 10 percent; therefore, a separate or higher rating under DC 5263 for genu recurvatum is not warranted. Under DC 5258, a maximum 20 percent rating is prescribed for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. While the left knee disability has been manifested by painful motion and swelling (effusion) into the joint, it has not been manifested by dislocation of the meniscus (semilunar cartilage) or locking. The weight of the evidence is against finding that the Veteran has a meniscus (semilunar cartilage) condition. Although the October 2014 private examiner noted diagnoses of left knee medial meniscal tear and anterior cruciate ligament tear, he also wrote that he had reviewed no treatment records, no imaging studies had been conducted, and the diagnoses were based on the Veteran's reported history and a clinical examination. Because VA examiners in March 2015, September 2019, and August 2021 each noted that there was no meniscal condition, it is unlikely that the Veteran reported a history of meniscal tear at those examinations, and no such history is otherwise documented in the record; therefore, the Veteran's October 2014 account of a history of meniscal tear is not deemed credible and is of no probative value. Because the October 2014 diagnosis of meniscal tear was partly based on a reported history of meniscal tear, which was denied and not demonstrated at subsequent VA examinations, and is not documented in any other evidence of record, the October 2014 meniscal tear diagnosis rendered by the private examiner is of no probative value and is outweighed by other, more credible evidence showing no meniscal tear condition. The functional impairment caused by the pain on movement and swelling are factors already contemplated by the 10 percent rating currently assigned under DC 5003. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Because the weight of the evidence reflects that the left knee disability does not involve a meniscus tear or dislocation of the semilunar cartilage, and the rating criteria under DC 5003 encompass the other left knee symptomatology of painful motion, swelling, and buckling (including by incorporation of rating principles at 38 C.F.R. §§ 4.40, 4.45, 4.59), the Board finds that a separate or alternate rating under DC 5258 is not warranted for any period. Under DC 5259, a maximum 10 percent rating is prescribed for removal of symptomatic semilunar cartilage. 38 C.F.R. § 4.71a. In this case, a higher rating is not warranted under DC 5259 because the evidence in this case shows no removal of symptomatic semilunar cartilage for the left knee; therefore, DC 5259 is not applicable. 2. Separate 20 Percent Rating for Left Knee Instability is Granted. The Board will next consider whether a separate rating is warranted under other potentially applicable DCs used for rating knee disabilities. DC 5257 provides a 10 percent rating when there is evidence of slight impairment of the knee manifested by recurrent subluxation or lateral instability, a 20 percent rating for moderate impairment of the knee manifested by recurrent subluxation or lateral instability, and a 30 percent rating for severe impairment of the knee manifested by recurrent subluxation or lateral instability. 38 U.S.C. § 4.71a. In this case, the evidence is in equipoise on the question of whether left knee disability is manifested by moderate instability to warrant a separate 20 percent rating under DC 5257 for other impairment of the knee. Although the March 2015, September 2019, and August 2021 VA examinations show no instability demonstrated on objective testing of the left knee, the Veteran has reported use of a knee brace, and a February 2015 private disability benefits questionnaire shows that the left knee disability was manifested by recurrent subluxation and instability of the left knee to a moderate degree. In consideration of the foregoing, and given the normal posterior and lateral instability testing demonstrated even at the private examination (while objectively demonstrating anterior instability and medial instability), and the private examiner's characterization of the left knee instability demonstrated as moderate, the Board finds that the left knee disability is manifested by no more than moderate instability; therefore, resolving reasonable doubt in favor of the Veteran, a separate rating of 20 percent for moderate left knee instability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Board finds that neither the Veteran nor the record has raised a claim for an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (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). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.