Citation Nr: 21074772 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-52 189 DATE: December 16, 2021 ORDER A rating in excess of 10 percent for a left knee condition is denied. FINDING OF FACT The Veteran's left knee disability is manifest by limitation of flexion to 110 degrees with pain on weight bearing. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010, 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army for 27 days in October 1992. In a September 1996 rating decision, the VA Regional Office (RO) in Atlanta, Georgia granted service connection for dislocation of the left knee. The disability was evaluated as noncompensable (zero percent) disabling, effective May 28, 1996. In June 2012, the Veteran filed for an increased rating. A December 2014 rating decision granted an increased rating for the Veteran's left knee to 10 percent. The Veteran timely filed a notice of disagreement and perfected his appeal to the Board. This matter was previously before the Board in May 2019, when the Board denied an earlier effective date prior to June 18, 2012, for the Veteran's left knee condition and remanded his claim for an increased rating for a new VA examination. The Board found that neither private treatment records nor the Veteran's 2014 VA knee examination adequately addressed the requirements set out in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 29 (2017). The Board is satisfied that there has been at least substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Of note, there is evidence that the Veteran may be seeking a TDIU. When entitlement to a TDIU is raised during an appeal for an increased rating, it is considered part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). Specifically, he reports that his knee condition has caused him to miss 120 days of work. However, the Board finds no evidence that the Veteran is currently unemployed. Additionally, the Veteran's private physician has cleared him to return to work full time with no limitations. See Medical Treatment Records Non-government Facility received August 7, 2017. Therefore, TDIU will not be addressed further in this decision. Increased Rating The Veteran seeks an increased rating in excess of 10 percent for his left knee disability. Service connection was granted with a noncompensable (zero percent) rating effective May 28, 1996. A subsequent rating decision increased this rating to 10 percent effective June 18, 2012, the date the Veteran filed for an increase. The Veteran has appealed this rating. The Veteran's left knee condition is currently rated under Diagnostic Code 5259-5260 which suggests that the rating is based on compensable limitation of flexion. 38 C.F.R. § 4.71a. A review of the evidence reflects that the left knee condition has manifested as osteoarthritis and has been rated based on painful noncompensable limitation of motion, and that the left knee condition has not had compensable limitation of motion (i.e., limitation of flexion or extension) at any time during the relevant rating period. Therefore, the Diagnostic Code assigned should have been Diagnostic Code 5010, to show that the left knee condition with osteoarthritis is being rated based on noncompensable limitation of motion that is painful. For this reason, the Board is changing the Diagnostic Code for the Veteran's left knee condition to 5010 to reflect the actual rating already assigned. 38 C.F.R. § 4.71a. Degenerative and/or traumatic arthritis as shown by x-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Under Diagnostic Code 5260, a 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. 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). Standard motion of a knee joint is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. The Veteran was afforded a VA examination in November 2014 where he was diagnosed with status post patellar realignment surgery of the left knee and mild ligament instability with lateral collateral ligament (LCL) laxity of the left knee. Upon examination, the Veteran demonstrated left knee flexion to 130 degrees, with painful motion beginning at 120 degrees, and extension to zero degrees. The Veteran was able to perform repetitive-use testing with no additional range of motion loss. The examiner indicated that pain on movement and disturbance of locomotion contributed to functional loss and/or functional impairment of the knee as well as additional limitation in range of motion. Strength testing was normal (5/5) and medial-lateral instability testing revealed instability of 1+. There is no evidence or history of recurrent patellar subluxation/dislocation. The Veteran has had a meniscal condition and experiences frequent episodes of joint "locking" and frequent episodes of joint pain in both knees. The Veteran reported constant use of a cane and occasional use of a brace. 1. Pursuant to the May 2019 Board remand, the Veteran was afforded another VA examination in November 2019, where he was diagnosed with bilateral degenerative arthritis, bilateral lateral release with medial retinacular repair and patellar tendon transfer. The Veteran reported that he was injured while in basic training and was subsequently discharged. He reported pain (4/10) on the day of the examination and that he wears a brace every day. He indicated he experiences pain when climbing out of his truck at work and that he has lost 120 days of work in the last year due to his knee disability. The Veteran stated that his knees get stiff at night and, at times, in the morning as well. During flare-ups, which occur one to two times per week, he experiences severe symptoms that can last several hours. Upon examination, the Veteran showed right knee flexion to 120 degrees and left knee flexion to 110 degrees. No pain was noted during range of motion testing, but there was evidence of pain with weight bearing on both sides. The Veteran was able to perform repetitive use testing with at least three repetitions without additional functional loss or range of motion. Muscle strength testing was normal, there was no muscle atrophy, and there was no ankylosis of the right or left knee. No recurrent subluxation or lateral instability was reported. Joint stability testing was performed and there was no joint instability. The Veteran did not have any meniscus conditions noted and reported regular use of braces for his knees. The examiner opined that the Veteran's knee conditions would result in difficulty with prolonged standing. The examiner opined that the Veteran's 2010 surgery was not an extension of the Veteran's service-connected disability and was not a progression. Private treatment records show that in approximately January 2010 the Veteran slipped on ice and dislocated his left knee at work. At that time, the Veteran exhibited flexion to 90 degrees and extension to 0 degrees. These records indicate that his knee surgeries in 2010 were the result of this work injury. An August 2010 private treatment note diagnosed the Veteran with patellofemoral instability of both the left and right knee. In November 2010, the Veteran was cleared to return to work. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for a left knee condition. To receive a higher schedular rating, the Veteran must demonstrate limitation of flexion to 30 degrees or extension to 15 degrees of the left knee. At worst, the Veteran's limitation of flexion was 110 degrees, significantly greater than required for an increase. There is no evidence of record to show range of motion testing more severe than these findings during the appeal period. At the outset, the Board acknowledges that the November 2019 VA examination does not fully address the concerns raised in Correia v. McDonald, 28 Vet. App. 158 (2016) (providing that regulations require joint examinations test for pain on active and passive motion and in weight-bearing and non-weight-bearing). However, the Veteran is already in receipt of a 10 percent disability evaluation under Diagnostic Code 5010 for the entire appeal period, and a higher rating would require limitation of flexion to 30 degrees or extension to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Given that, at worst, the Veteran's limitation of flexion was to 110 degrees, a remand of this claim in order to obtain a current examination that complies completely with Correia, namely active/passive motion testing, would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (concluding that remand is unnecessary where it "would result in this Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran"). The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements regarding severe flare-ups for several hours would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. The Board also considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, the November 2019 VA examination showed that pain and flare-ups caused functional loss. However, pain, weakness, and additional considered factors were not shown to otherwise limit the range of motion in the Veteran's left knee such that a higher rating would be warranted at any time. Likewise, the Veteran was able to perform repetitive motion testing without any additional loss of motion. 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). Separate ratings for instability may also be warranted under Diagnostic Code 5257 based on recurrent subluxation or lateral instability. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned 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 or bracing for ambulation. The private treatment records indicate that the Veteran has had a diagnosis of patellar instability and a surgery for this condition in 2010. Additionally, both VA examinations indicate that the Veteran uses a brace and possibly a cane. However, the Veteran's private physician and the November 2019 VA examiner indicated that this instability is due to a 2010 work-related injury and not related to his service-connected disabilities. As a result, the Board finds that a separate rating for lateral instability is not warranted under either the old or amended versions of Diagnostic Code 5257. Consideration of other Diagnostic Codes for rating knee disability (5256, 5258, 5259, 5262, 5263) is inappropriate in this case as the Veteran's knee disability does not include the pathology required in the criteria for those Diagnostic Codes (ankylosis, dislocated semilunar cartilage, malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a. 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 a left knee condition. 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. Nykeia Miller Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, Associate 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.