Citation Nr: 21069590 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 15-37 211 DATE: November 18, 2021 ORDER Entitlement to an increased rating greater than 10 percent for right knee strain is denied. FINDING OF FACT The Veteran's right knee strain is manifested by pain with many activities and limitation of motion. CONCLUSION OF LAW The criteria for an initial rating greater than 10 percent for right knee strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Army from June 2006 to April 2011 with combat service in Afghanistan. He was awarded the Purple Heart Medal and Combat Action Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2018. The hearing transcript is associated with the claims file. The Board denied the Veteran's claim in a June 2020 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) and in a February 2021 Order the Court granted a Joint Motion for Remand (JMR) requesting that the Board's June 2020 decision be vacated, and the matter remanded to the Board for additional development. The Board remanded the claim in July 2021. Entitlement to an increased rating greater than 10 percent for right knee strain Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran contends that the 10 percent disability rating that is currently assigned to his service-connected right knee strain does not contemplate the severity of his symptoms. The general rating schedules for limitation of motion of the knee are 38 C.F.R. § 4.71a, DCs 5260 and 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees. A 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. Under DC 5261, a 10 percent disability rating is warranted for extension limited to 10 degrees. A 20 percent disability rating is assigned for extension limited to 15 degrees. A 30 percent disability rating is assigned for extension limited to 20 degrees. A 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. See 38 C.F.R. § 4.71a. In addition, separate ratings may be assigned for compensable limitation of both flexion and extension. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). Under Diagnostic Code 5257, the criteria for impairment of the knee other than ankylosis, 10, 20, and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or instability, respectively. C.F.R. § 4.71a, Diagnostic Code 5257. The terms "slight," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "slight" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. Under the new criteria effective February 7, 2021, recurrent subluxation or instability involves either sprain, incomplete ligament tear, or complete ligament tear (whether repaired, unrepaired, or failed repair), and the impairment must result in persistent instability of the affected knee. For a 10 percent rating, there is no need for a prescribed brace or assistive device, such as a cane, crutch, or walker, but a prescription from a medical provider is required for the 20 and 30 percent ratings. The difference between the 20 and 30 percent ratings is that, for a 20 percent rating, the prescription need only be for either a brace or an assistive device, while for a 30 percent rating, the prescription must be for both and the disability must be an unrepaired or failed repair of a complete ligament tear. Where the veteran has a prescription for both a brace and an assistive device, but the associated disability is sprain, incomplete ligament tear, or a repaired complete ligament tear, only a 20 percent rating is available. Patellar instability is defined as a diagnosed condition involving the patellofemoral complex and must result in recurrent instability. The 10, 20, and 30 percent ratings are differentiated by, again, the type of impairment and whether a medical provider has prescribed a brace or assistive device. A 10 percent rating does not require a history of surgical repair or a prescribed brace, cane, or walker. A 20 percent rating requires surgical repair and a prescription for either a brace, cane, or walker, while a 30 percent rating requires surgical repair and a prescription for a brace and either a cane or a walker. A second note to this section clarifies that the surgery contemplated by the patellar instability criteria is specifically to repair one or more patellofemoral components; the note disqualifies arthroscopy to remove loose bodies and joint aspiration as surgical repair for patellar instability. In July 2011, the Veteran submitted a statement in support of claim. The Veteran reported that it was hard to put pressure on his knee. In a September 2011 treatment record, the Veteran was seen for right knee pain that was sharp and ached. The Veteran reported that his pain was a 4 out of 10. In January 2012, the Veteran was seen for chronic right knee pain and was referred to physical therapy for his right knee but declined; indicating he had physical therapy in-service and did home exercises and went to the gym. In August 2013, the Veteran was afforded a knee and leg VA examination. The examiner noted a diagnosis of a right knee strain which was diagnosed in 2011. The Veteran reported that he felt a tight sensation in his right knee with flexion or a discomfort in the anterior patella when he kneeled. The Veteran did not report any flareups. The range of motion was 140 degrees or greater for flexion and there was no limitation of extension. On repetitive use testing the Veteran's flexion was 140 degrees or greater. There was no additional functional loss or functional impairment on repetitive use; no tenderness or pain to palpation and muscle strength is a 5 out of 5 for flexion and extension. The joint stability tests were normal. The Veteran did not use any assistive devices and the knee did not impact his ability to work. The examiner indicated that neither pain, weakness, fatigability, or incoordination significantly limited his functional ability during flareups or when the joint was used repeatedly over a period of time. In a May 2014 notice of disagreement, the Veteran reported that his knee started hurting within the past few months. The Veteran stated he noticed that the pain was more frequent when he got out of bed and when he got on his hands and knees. The Veteran also stated that it hurt to put pressure on the knee for any reason. In a September 2014 mental health note, the Veteran reported that his right knee pain had worsened when in the kneeling position. Also, the clinician found that the right knee joint had no effusion, the range of motion was intact and there was no instability. In an August 2015 mental health and physical note, a clinician indicated that there was ok movement in the extremities and there was no joint swelling or tenderness. In a September 2015 substantive appeal, the Veteran reported that when he would get on his hands and knees, there would be pressure on his right knee. The Veteran stated the pressure on his right knee would hurt and he would feel pain under and around his whole knee cap. In a December 2015 vocational rehabilitation note, a clinician noted that the Veteran had limitations in his right knee when he pushed; balanced; stooped; kneeled; crouched; stood and walked. In November 2018, the Veteran testified during a hearing. The Veteran testified that he was only able to stand up for an hour to two hours without experiencing pain and swelling. Also, the Veteran stated that he could sit without pain for three to four hours. The Veteran indicated that he was able to walk up three flights of stairs at home and work, but he could not just freely run up the stairs. The Veteran further testified that his pain was on average a 5 out of a scale of 1 to 10. The Veteran reported that he walked for a long time, the knee would "give out on him." When asked about "giving out," he agreed that pain caused him to take weight off the joint but also that the joint was not "tight." The Veteran also stated he drove a car but did not do a lot of extracurricular activities. In May 2019, the Veteran was afforded another VA Knee and lower leg conditions examination. The examiner reviewed the claims file; considered the Veteran's subjective accounts and conducted an evaluation. The examiner noted a diagnosis of a right knee strain. The Veteran stated that his knee pain had worsened and ached all the time, especially when climbing stairs. The Veteran indicated that he had begun private physical therapy a couple months ago, but it had not helped. The Veteran also stated that when he sat at a desk all day his knee pain was worse, and his knee popped regularly. The Veteran did not report flareups of the knee. The Veteran did report functional loss or impairment, due to issues when he climbed stairs; and noted that when he carried his newborn baby around in her car seat it hurt his right knee. The Veteran also mentioned issues when carrying heavy items, kneeling, squatting, walking to take out trash, prolonged standing and sitting. The range of motion examination revealed that the right knee was abnormal or outside of normal range with flexion at 0 to 110 degrees and the extension at 110 to 0 degrees. However, the range of motion did not contribute to functional loss. Pain was noted in examination but did not result in functional loss. There was pain on weightbearing and objective evidence of localized tenderness or pain on palpation of the joint. The pain was moderate and there was tenderness to the medial and lateral joint lines and to compression of the patella. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions; there was additional functional loss or range of motion after three repetitions with factors of pain; fatigue and weakness. Range of motion on repetition was 0 to 100 degrees for flexion and 100 to 0 degrees for extension. The examiner noted that the examination was medically consistent with the Veteran's statements and pain; weakness; fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength was a 4 out of 5 for the right knee flexion and extension. The Veteran did not have muscle atrophy. There was no ankylosis; no history of recurrent subluxation; lateral instability and no recurrent effusion. There was no clinically observed joint instability. The Veteran never had a meniscus condition, and the Veteran did not use any assistive devices. The Veteran was afforded a VA examination in August 2021. The Veteran reported ongoing right knee pain. The pain was aggravated by prolonged walking or using stairs. The daily pain level was 7 out of 10. The Veteran denied major flare ups. The knee was painful in the morning until the Veteran stretched the knee but stayed sore throughout the day. The pain was not quite as bad at night or at the end of his workday. There was functional loss in that with prolonged standing of more than 15 minutes there was increased pain, but the Veteran could stand for up to an hour. With sitting of a few hours or more, the knee started to get sore. Stairs were difficult and the Veteran was able to walk slowly for about 15 minutes. Knee pain was aggravated by heavier lifting and he had difficulty with crawling and crouching. The Veteran had some difficulty with ladders. There was no history of instability or recurrent subluxation of the knee or frequent effusion. Right knee active range of motion was from 0 to 110 degrees. There was pain with weight bearing, non-weight-bearing, active motion, passive motion, and functional loss. These factors resulted in limited prolonged standing and excessive walking, as well as pain at rest and on passive range of motion. There was no crepitus, but there was mild localized tenderness to palpation. There was no further loss of motion on repetitive motion. The Veteran did not have muscle atrophy or ankylosis. There was no recurrent subluxation, persistent instability, or ligament tear. The Veteran did not have diagnosed recurrent patellar dislocation, shin splints, stress fractures, or any other tibial or fibular impairment. The Veteran did not have a meniscus condition. The Veteran did not use any assistive devices. The right knee disability impacted his ability to work in that he felt pain after standing for 15 minutes but could stand for an hour. Prolonged sitting caused soreness after a few hours. He had trouble with stairs and could walk slowly for 15 minutes. Pain was aggravated by heavier lifting, had difficulty with crawling and crouching, had problems with ladders, and had difficulty running, climbing, and with uneven surfaces. The Board recognizes that the August 2021 VA examination report includes the same potential discrepancy as the May 2019 VA examination report in that both reports indicated that the procured evidence (statements from the Veteran) did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with repeated use over time. By contrast, both examination reports also indicated that the Veteran had problems with prolonged walking, sitting, standing, carrying heavy objects, squatting, kneeling, climbing stairs, and other activities. The Board is cognizant of the foregoing but finds the current examination report sufficient to rate the Veteran's right knee disability. Again, the Board recognizes that the August 2021 examiner's conclusion that the evidence did not suggest that the above factors result in "significant limits" on the Veteran's functional ability with repeated use over time. Such a finding, however, is a subjective finding rather than a medical conclusion, as each examiner's evaluation of what would constitute "significant limits" on functioning varies by the individual. Given that the August 2021 examination report provided extensive detail on the effects of the Veteran's right knee disability on his functioning (including limitations on walking, sitting, standing, and other activities) and the other lay and medical evidence of record, the Board will evaluate the propriety of a higher rating based on the evidence of record and will afford no probative weight to the examiner's subjective conclusions that the Veteran's symptoms did not result in "significant limits" on functional ability with repeated use over time. An August 2021 VA scar examination report noted a right patella scar that was 3cm by 0.5cm. There was no underlying tissue damage. The scar was not painful or unstable. The Board finds that a rating greater than 10 percent for the right knee strain is not warranted under DCs 5260 or 5261 for any period on appeal. The Veteran's limited flexion is no worse than 100 degrees (even accounting for limitation of motion with repetitive motion) and there is no limitation of extension. Thus, there is no basis for a higher rating under DCs 5260 or 5261. In addition, no higher or alternative rating under a different DC can be applied for either knee. The Board notes that there are other DCs relating to knee disorders, such as DC 5256 (ankylosis of the knee), DC 5257 (subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (removal of semilunar cartilage, symptomatic), DC 5262 (impairment of the tibia and fibula), and DC 5263 (for genu recurvatum). The Veteran has reported episodes of "giving out" or "looseness" of the right knee. It is not dispositive, however, that these reports involve lateral instability or subluxation, as contemplated by DC 5257. The parties to the JMR found that the Board previously and impermissibly found the medical assessment more probative than the Veteran's lay reports contrary to English v. Wilkie, 30 Vet.App. 347, 352 (2018) and did not make specific findings as to the Veteran's credibility. Here, the Board does not restrict the evidence only to objective medical evidence or categorically find medical evidence more probative, but rather assesses the competence, credibility, and probative value of the medical and lay evidence summarized above. The Veteran is competent and credible to report that his knee gave out. As found by the parties to the JMR, the Board may not make a medical judgment of what this may mean. Absent any further narrative by the Veteran, a lay interpretation is that his knee did not provide support for the particular movement attempted. He also one occasion credibly reported his feeling of looseness in the knee but denied a history of instability or recurrent subluxation in the most recent examination. The examiner noted none after a file review. The Veteran did not report the use of a brace or other support device or than he was prescribed a device. There is no evidence of patellar subluxation. Although he reported limitations in mobility endurance and avoidance of ladders, he reported to clinicians including in May 2020 that he worked full time as an information systems technician and could do the work from home. Therefore, his occupation did not require extended standing, walking or ladder climbing. He did not report that he was unable to drive a vehicle. Greater weight is assigned to medical testing consistently has shown no evidence of instability or subluxation. Therefore, the Board finds that the weight of competent, credible, and probative evidence is that a separate rating under DC 5257 is not warranted. The Veteran's right knee disability is not manifested by nonunion or malunion of the tibia and fibula, dislocated or removed semilunar (meniscal) cartilage, or genu recurvatum. Ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Veteran is able to move his right knee, albeit with some limitation of motion, so it is clearly not ankylosed. The Board notes that the Veteran's functional loss was considered, as the medical evidence shows that the Veteran has consistently complained of pain in the right knee. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the limitation of motion documented in the medical records as resulting from pain is already contemplated in the disability ratings currently assigned. Objective testing consistently has shown no more than slightly decreased muscle strength of 4 out of 5, with no evidence of muscle atrophy. Thus, despite the Veteran's reported problems associated with the right knee, he clearly is able to use the knee in close to a normal manner, to include duration of use, and, in fact, does so. See 38 C.F.R. § 4.40 (noting that, "A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like."). There is otherwise no evidence of significant impairment of motor skills, muscle function, or strength attributable to the Veteran's right knee disability. (continued next page) The Board acknowledges the Veteran's reports of ongoing problems with extended sitting, standing, kneeling, and other activities. As discussed, however, even accounting for these problems, his right knee symptomatology and assessing the whole picture of the disability rather than emphasis on single and occasional symptom reports, the Board does not result in functional loss consistent with a rating higher than the currently assigned 10 percent rating. Consequently, the Board finds that a higher disability rating based on functional loss is not warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.