Citation Nr: 21075496
Decision Date: 12/20/21	Archive Date: 12/20/21

DOCKET NO. 16-06 529
DATE: December 20, 2021

ORDER

Entitlement to a disability rating in excess of 10 percent for left knee strain is denied.

Entitlement to a disability rating in excess of 10 percent for right knee strain is denied.

FINDINGS OF FACT

1. The Veteran's left knee strain does not show compensable limitation of motion on flexion or extension.

2. The Veteran's right knee strain does not show compensable limitation of motion on flexion or extension.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating in excess of 10 percent for left knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5260, 5261.

2. The criteria for entitlement to a disability rating in excess of 10 percent for right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5260, 5261.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably in the United States Marine Corps from August 1990 to July 1994. He also served in the US Army from February 2003 to September 2004; October 2005 to October 2008; and from December 2008 to August 2010.

This matter comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision, issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In April 2021, the Board denied the Veteran's claim. In October 2021, the United States Court of Appeals for Veterans Claims (Court) approved a joint motion for remand (JMR), and vacated the April 2021 denial and remanded the matter back to the Board. In the JMR, the parties established that the Board failed to provide an adequate statement of reasons or bases to support its finding that the Veteran was not entitled to compensable ratings for bilateral knee strain under 38 C.F.R. § 4.71a, DC 5261 (limitation of extension) and 38 C.F.R. § 4.59 (painful motion). The case is now back before the Board, which is prepared to fully adjudicate the issue at hand.

Increased Rating

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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.

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

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 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).

Under 38 CFR §4.59, consideration of functional loss due to painful motion can be rated to the minimum compensable rating for a particular joint. Painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not solely limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

1. Entitlement to a disability rating in excess of 10 percent for left knee strain 

2. Entitlement to a disability rating in excess of 10 percent for right knee strain 

The Veteran is seeking increased disability ratings for his bilateral knee strain. He contends the severity of his bilateral knee disabilities are not accurately reflected by his assigned disability ratings. The Veteran has asserted that he has compensable loss of both flexion and extension of both lower extremities under Diagnostic Code 5260 and 5261. 38 C.F.R. § 4.71a.

The Board notes that the Veteran is currently rated at 10 percent for the right and left knee disabilities based on 38 C.F.R § 4.59. This regulation states its intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.

 Disabilities of the knees are evaluated pursuant to the criteria within 38 C.F.R. § 4.71a, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). The relevant diagnostic codes in this matter are DC 5260 and 5261.

The Board is cognizant of the recent changes to the Rating Schedule that addresses the musculoskeletal system and muscle injuries, which became effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Regardless, if a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); VAOPGCPREC 3- 2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Thus, the Board will continue to apply the old rating criteria for the Diagnostic Codes to rating periods prior to February 7, 2021 but can apply whichever set of criteria is more favorable to periods after February 7, 2021, if the claim was pending prior to this date.

 In the present case, there is no pertinent clinical or lay evidence of record in the claims file dated after February 7, 2021 pertaining to the left and right knee strains. Therefore, the February 7, 2021 amendments to Diagnostic Codes 5257, 5260, 5261, and 5262 for knee disabilities are of no consequence here. Moreover, even if they did apply to the evidence currently of record, the February 7, 2021 amendments would not change the outcome of the present appeal based on the fact pattern of the Veteran's case.

Under Diagnostic Code 5260, which evaluates limitation of flexion, a noncompensable rating is assigned when flexion is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, which evaluates limitation of extension, a noncompensable rating is assigned when extension is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a.

While it has been determined that separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same knee joint, 38 C.F.R. § 4.59 focuses on assigning a single 10 percent rating for the joint when compensable limitation of motion is not present but other factors are, such as painful motion. As such, separate ratings for limitation of extension and flexion are not warranted unless there is compensable limitation of motion in both flexion and extension. Stated another way, if limitation of motion in extension and flexion is painful but noncompensable under DCs 5260 and 5261, the Veteran warrants a single 10 percent rating for painful motion for the knee joint. If there is compensable limitation of flexion and painful but noncompensable limitation of extension, a separate 10 percent rating for painful extension is not warranted, as the Veteran will be assigned the minimal compensable rating for the joint via the compensable rating under DC 5260. Ultimately, 38 C.F.R. § 4.59 provides for a 10 percent rating for the knee joint but does not separate out different planes of motion.

In the case at hand, the Veteran was afforded an initial VA examination for his knees in April 2013. The Veteran reported that once every two months, his knees would lock up when kneeling. He denied flare-ups of the knees. He also reported getting hit in the knee by a softball while in service. The VA examiner confirmed diagnoses of bilateral knee strain and bilateral restless leg. On examination, range of motion testing revealed right knee flexion to 130 degrees with no objective evidence of painful motion, normal right knee extension to 0 degrees with no objective evidence of painful motion, left knee flexion to 130 degrees with no objective evidence of painful motion, and normal left knee extension to 0 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions with no loss of range of motion in the right or left knee. He did not have additional limitation of range of motion of the knees/lower leg or any functional loss/impairment following repetitive-use testing. There was no tenderness or pain to palpation of the joint or associated soft tissue. Muscle strength and joint stability were normal bilaterally. There was no history of recurrent subluxation/dislocation. The examiner indicated that the Veteran had never had recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. He never had a meniscal condition. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the bilateral knees. The Veteran did not use assistive devices to aid in locomotion. The examiner noted that the Veteran's knee disabilities did not impact his ability to work.

In May 2019, the Veteran was afforded another VA examination. The Veteran reported that his condition occurred gradually over time with road marches and physical training. It started in 2009 and had stayed the same. The Veteran reported knee pain with bending or prolonged walking. He endorsed flare-ups of the knees, noting sharp pain and stiffness. The Veteran reported functional loss/impairment, with difficulty walking, running, and standing for long periods of time and difficulty with stairs. The VA examiner confirmed diagnoses of residual injury chronic right knee strain and residual injury chronic left knee strain.

On examination, range of motion testing revealed right knee flexion to 85 degrees and right knee extension to 0 degrees. Pain was noted on examination and caused functional loss. Range of motion itself did not contribute to functional loss. There was evidence of pain with weightbearing, non-weightbearing, and on passive range of motion with right knee flexion to 80 degrees and right knee extension to 0 degrees. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was objective evidence of crepitus. Range of motion testing of the left knee revealed flexion to 85 degrees and extension to 0 degrees. Pain was noted on examination and caused functional loss. Range of motion itself did not contribute to functional loss. There was evidence of pain with weightbearing, non-weightbearing, and on passive range of motion with left knee flexion to 80 degrees and left knee extension to 0 degrees. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions resulting in right knee flexion to 80 degrees, right knee extension to 0 degrees, left knee flexion to 80 degrees, and left knee extension to 0 degrees. Pain and fatigue caused functional loss. The examiner indicated that pain and lack of endurance significantly limited functional ability with repeated use over a period of time, resulting in right knee flexion to 75 degrees, right knee extension to 0 degrees, left knee flexion to 75 degrees, and left knee extension to 0 degrees. Pain and lack of endurance significantly limited functional ability with flare-ups resulting in right knee flexion to 70 degrees, right knee extension to 0 degrees, left knee flexion to 70 degrees, and left knee extension to 0 degrees.

The examiner indicated there were no additional contributing factors of disability. Muscle strength was normal bilaterally with no reduction in muscle strength and no muscle atrophy. No ankylosis was noted. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was not performed. The examiner indicated that the Veteran had never had recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. He never had a meniscus condition. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the bilateral knees. The Veteran did not use assistive devices to aid in locomotion. The examiner indicated that the Veteran's knee conditions affected his ability to work, noting knee pain, stiffness, limited range of motion, and difficulty with bending and prolonged walking over one mile.

In June 2019, VA granted the Veteran a 10 percent disability rating each for his left and right knees. The RO assigned the 10 percent rating due to the finding of painful motion reported on the May 2019 VA examination.

The Veteran was afforded yet another VA examination for his knees in January 2020. He reported that his knee conditions had worsened over the years and impacted his life, causing difficulty with walking long distances, climbing up and down stairs, or bending during flare-ups. The Veteran reported flare-ups of the right knee and left knee that occurred daily, were mild in severity, and lasted a few hours. Flare-ups of both knees were precipitated by prolonged walking, sitting, and climbing stairs and were alleviated by rest. The Veteran indicated he experienced functional loss/impairment of the knees resulting in limited range of motion and difficulty with heavy lifting, prolonged standing, walking, or climbing stairs. The VA examiner confirmed diagnoses of right knee strain and residuals of an injury, chronic left knee strain.

On examination, range of motion testing revealed right knee flexion to 90 degrees and extension to 0 degrees. Range of motion itself did not contribute to functional loss. Pain was noted on exam and caused functional loss. There was evidence of pain with weightbearing, non-weightbearing, and on passive range of motion testing. There was no objective evidence of crepitus, or localized tenderness or pain on palpation of the joint or associated soft tissue. Range of motion testing of the left knee revealed flexion to 80 degrees and extension to 0 degrees. Range of motion itself did not contribute to functional loss. Pain was noted on exam and caused functional loss. There was evidence of pain with weightbearing, non-weightbearing, and on passive range of motion testing. There was no objective evidence of crepitus, or localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions resulting in right knee flexion to 85 degrees, right knee extension to 0 degrees, left knee flexion to 75 degrees, and left knee extension to 0 degrees. Pain and lack of endurance caused functional loss. The examiner indicated that pain and lack of endurance significantly limited functional ability with repeated use over a period of time, resulting in right knee flexion to 80 degrees, right knee extension to 0 degrees, left knee flexion to 70 degrees, and left knee extension to 0 degrees. Pain and lack of endurance significantly limited functional ability with flare-ups resulting in right knee flexion to 75 degrees, right knee extension to 0 degrees, left knee flexion to 65 degrees, and left knee extension to 0 degrees.

The examiner indicated there were no additional contributing factors of disability. Muscle strength was normal bilaterally with no reduction in muscle strength and no muscle atrophy. No ankylosis was noted. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability was normal for both knees. The examiner indicated that the Veteran had never had recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. He never had a meniscus condition. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the bilateral knees. The Veteran did not use assistive devices to aid in locomotion. The examiner indicated that the Veteran's knee conditions affected his ability to work, noting knee pain, stiffness, limited range of motion, and difficulty with bending and prolonged walking over one mile.

Following a review of the evidence, the Board finds that disability ratings in excess of 10 percent are not warranted for either knee, as the criteria for higher ratings have not been met. The evidence does not show flexion of either knee limited to 30 degrees to warrant a 20 percent disability rating under Diagnostic Code 5260. The evidence also does not support a finding of extension in either knee being limited to 15 degrees to warrant a 20 percent disability rating under Diagnostic Code 5261.

The April 2013 VA examination noted right and left knee flexion to 130 degrees, with no objective evidence of pain. After repeated use with three repetitions, flexion of both knees remained the same. The May 2019 VA examination noted right knee flexion to 85 degrees and left knee flexion to 85 degrees. Range of motion testing on weightbearing, non-weightbearing, and passive range of motion resulted in flexion of both knees to 80 degrees. After repeated use testing with three repetitions, flexion of both knees decreased to 80 degrees. Range of motion after repetitive use over a period of time resulted in flexion to 75 degrees for both knees and during flare-ups, resulted in flexion to 70 degrees for both knees. The January 2020 VA examination noted right knee flexion to 90 degrees and left knee flexion to 80 degrees. After repeated use with three repetitions, flexion of the right knee decreased to 85 degrees and flexion of the left knee decreased to 75 degrees. Range of motion after repetitive use over a period of time resulted in right knee flexion to 80 degrees and left knee flexion to 70 degrees. During flare-ups, right knee flexion decreased to 75 degrees and left knee flexion decreased to 65 degrees. Evidence of pain on range of motion testing was indicated on both the May 2019 VA examination as well as the January 2020 examination. Treatment records on file from the Oakville VA Clinic and Atlanta VA medical center (VAMC) do not provide any evidence contrary to that obtained in the VA examinations. 

The Board also notes that in an August 2020 correspondence, the Veteran's attorney asserted that based on the range of motion measurements from VA examinations, the Veteran is entitled to a separate 10 percent disability rating under Diagnostic Code 5261 for limitation of extension. The attorney further asserted that separate evaluations are not prohibited when a knee disability causes loss of both flexion and extension. While the Veteran's attorney is correct in that a knee disability may be evaluated under both Diagnostic Codes 5260 and 5261 for limitation of flexion and extension, here, the evidence does not reflect bilateral knee strain causing compensable limitation of flexion or extension. In fact, as stated above, 38 C.F.R. § 4.59 focuses on assigning a 10 percent rating for the joint when compensable limitation of motion is not present but other factors are, such as painful motion. As such, separate ratings for limitation of extension and flexion are not warranted unless there is compensable limitation of motion in both flexion and extension. Here, the evidence of record supports a finding of painful motion, which allows for the minimum compensable rating of a joint to be granted under 38 C.F.R. § 4.59 while no evidence supports a finding that flexion or extension of either knee reaches a compensable level. 

Separate ratings under Diagnostic Codes 5260 and 5261 specifically contemplate compensable limitation of motion, but there is no provision in those Diagnostic Codes or in 38 C.F.R § 4.59 to separately assign 10 percent ratings under multiple Diagnostic Codes for painful but noncompensable motion. Here, the Veteran does not demonstrate compensable limitation of either flexion or extension; his flexion  of either knee has never been shown to be limited to even the 60 degrees required for a noncompensable rating under Diagnostic Code 5260, and his extension has consistently been shown to be full, to 0 degrees, thus not warranting even a noncompensable rating under Diagnostic Code 5261. Thus, compensable ratings under either Diagnostic Code 5260 or Diagnostic Code 5261 are simply not appropriate. In the absence of compensable limitation of motion of either plane of movement in the knee, flexion or extension, the Veteran has been correctly assigned a single 10 percent rating for each knee under 38 C.F.R. § 4.59. These ratings explicitly acknowledge and compensate for the Veteran's painful, but noncompensable, motion of the knee joint for each knee. 

Finally, as there is no evidence of ankylosis; other knee impairment, including recurrent subluxation or instability or patellar instability; semilunar dislocated cartilage; symptomatic removal of semilunar cartilage; impairment of the tibia and fibula; or genu recurvatum, separate or higher ratings under any other diagnostic code applicable to the knees is not warranted

Accordingly, the Board finds that disability ratings in excess of 10 percent for the Veteran's right knee and left knee strain are not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

 

 

Caroline B. Fleming

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E.L. Aumiller, 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.