Citation Nr: 21076420 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 14-19 886 DATE: December 23, 2021 ORDER A rating in excess of 10 percent for right knee patellar tendonitis with arthritis is denied. A rating in excess of 10 percent for left knee patellar tendonitis with arthritis is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran's right and left knee flexion has been limited to no less than 60 degrees; and her extension has been to 0 degrees and not limited to 10 degrees or more. 2. The Veteran does not have mild or more right or left knee recurrent subluxation or lateral instability. 3. The Veteran does not have dislocated or symptomatic removal of semilunar (meniscal) cartilage, ankylosis, tibia and fibula impairment with nonunion or malunion, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee patellar tendonitis with arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5024-5260. 2. The criteria for a rating in excess of 10 percent for left knee patellar tendonitis with arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5024-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1993 to May 1998. The Board thanks her for her service. She appeals from a January 2014 agency of original jurisdiction rating decision based on claims filed in June 2013. Her appeals were remanded to the agency of original jurisdiction (AOJ) in September 2019 and again in February 2021. In November 2020, her representative advised that the Veteran strongly believes that ratings in excess of 10 percent are warranted. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran currently has a 10 percent rating for each knee under 38 C.F.R. § 4.71a Diagnostic Code 5024-5260. Under Diagnostic Code 5260, leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating. Leg extension limited to 15 degrees warrants a 20 percent rating. Leg extension limited to 20 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5257, other knee impairment with slight recurrent subluxation or lateral instability warrants a 10 percent rating. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. A knee disability can be rated for both limitation of leg flexion under Diagnostic Code 5260 and limitation of leg extension under Diagnostic Code 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Separate ratings may also be assigned for knee disability under Diagnostic Codes 5257 and 5003 where there is X-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. Based on the evidence, the Board concludes that a rating in excess of 10 percent is not warranted for the Veteran's service connected right or left knee patellar tendonitis with arthritis under Diagnostic Code 5260. The preponderance of the evidence including the January 2014, December 2019, and May 2021 VA examination reports and the treatment records indicates that she does not have right or left knee flexion limited to 30 degrees, including when DeLuca, Sharp, flare-ups, and 38 C.F.R. §§ 4.40 and 4.45 are considered. The Board acknowledges the Veteran's reports of debility, including the reports at the time of the December 2019 VA examination, that she cannot hardly bend her knees at all due to pain on flare-ups; and at the time of the VA examination in May 2021, that the Veteran cannot walk or sit for more than 15 minutes at a time, and that she gets shots and pain medication for the pain. However, the worst right and left knee flexion currently shown was at the time of the December 2019 VA examination, when it was to at least 80 degrees on each side, including after at least 3 repetitions and with repetitive use over time. Additionally, the worst right and left knee flexion currently estimated, due to symptomatology due to flare-ups, is to 50 degrees, at the time of the VA examination in May 2021. Her muscle strengths are shown to be 5/5 for each knee, with no reduction of muscle strength or muscle atrophy according to the VA examination reports. And she did not indicate, in her statements, that she cannot flex her knees to at least 30 degrees. All of this is very probative evidence indicating that the Veteran has significantly more right and left knee flexion than the 30 or less degrees required for a 20 percent rating. Also, no compensable rating is warranted for limitation of right or left leg extension under Diagnostic Code 5261, as the Veteran does not have right or left leg extension limited to 10 degrees. The current VA examination reports each show the Veteran's right and left leg extension to be to 0 degrees. While the Veteran indicated in June 2020 that she has had some limitation of extension, the preponderance of the evidence indicates that a compensable degree of it is not present. The next question, then, is whether a compensable rating is warranted for right or left knee instability under Diagnostic Code 5257. The Board finds that the preponderance of the evidence indicates that it is not. Each of the identified VA examination reports indicates that the Veteran has no right or left knee instability, and the Veteran has not mentioned any instability. There is no evidence showing slight or more recurrent subluxation or lateral instability of either knee, and this is necessary for a compensable rating for either knee under Diagnostic Code 5257. The Board has considered whether the medical evidence of record supports ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5256, 5258, 5259, 5262, and/or 5263, and finds that it does not. No evidence shows that the Veteran has ankylosis necessary for a compensable rating under Diagnostic Code 5256. Her motion from 0 to at least 50 degrees or more contradicts ankylosis, and as late as the May 2021 VA examination, it was reported that there is no ankylosis of either knee. Also, there is no evidence of a meniscal tear or dislocation to support a 20 percent rating under Diagnostic Code 5258, and no indication that the Veteran has had meniscal cartilage removed to warrant a 10 percent rating under Diagnostic Code 5259. As recently as the May 2021 VA examination report, the examiner indicated that the Veteran has never had a meniscus condition of either knee, and the other VA examination reports are in accord with this. We acknowledge that there are symptoms of locking, buckling, effusion, and swelling reported, including in February and September 2016, at the time of the May 2021 VA examination, and by the Veteran in August 2021, but these are adequately compensated as part of the Veteran's arthritis under Diagnostic Code 5260. No meniscal tear or removal diagnoses have been made to permit additional ratings. There is no indication of tibia and fibula impairment with malunion or nonunion to permit a rating under Diagnostic Code 5262, or of genu recurvatum to permit a 10 percent rating under Diagnostic Code 5263. The Veteran argued in June 2020 that she disagreed with the measurements taken (reported) in the December 2019 VA examination report. She stated that she never did full extension during that examination, and cannot understand why the statement of the case states that she had full extension. She stated that the examiner in December 2019 reported that she had range of motion from 0 to 80 degrees, so she does not understand why the statement of the case says she has full extension. She further stated that the examiner never put an exact number for flexion and extension in the examination report. The Veteran reported in August 2021 that at the time of her VA examination in May 2021, her knees were so inflamed that she could not do extension or flexion examinations, that she has severe flare-ups of each knee, and that the examiner based the examination on the fact that she was sitting down, and that is where the examiner derived that the Veteran had flexion to 90 degrees. She stated that the examiner never performed an accurate flexion or extension examination; and that she was only sitting in the examiner's office for about 5 minutes, and that she kept moving her knees around because she did not want them to lock up. The Veteran's representative argued in December 2021 that the VA examination reports fail to account for the status of the Veteran's knees and are inadequate. However, the Board finds that the record before it is adequate to rate the disabilities at issue. First, when the examiner in December 2019 indicated that the range of motion of each of the Veteran's knees was from 0 to 80 degrees, the examiner meant that flexion was to 80 degrees and that extension was to 0 degrees. Extension to 0 is normal. See 38 C.F.R. § 4.71a, Plate II. That is why the supplemental statement of the case states that her extension was normal at that time. Next, the May 2021 VA examination report does not document or support any of the information which the Veteran provided in August 2021, but instead contains detailed findings which strongly contradict the information provided by the Veteran in August 2021, and the other examination reports contain similar, detailed clinical information and are not consistent with more than a 10 percent rating for each knee either. Normally, when a Veteran is unable or unwilling to perform range of motion testing, this will be noted by the examiner. It appears based on the examination reports that she was measured for range of motion on each of the examinations, and that they came out with similar findings, each supporting no more than a 10 percent rating for each knee. Additionally, at the time of the VA examination in May 2021, the Veteran reported that flareups occur 5 times weekly and are severe and last for days. However, none of her outpatient treatment records show any of the long and frequent severe flare-up symptoms she claims. Instead, they depict only less significant symptoms and a lot less frequently. Probably most notable are a February 2016 report by the Veteran of occasional left knee buckling, with an examination notation of mild swelling but a range of motion from 0 to 120 degrees, and Meloxicam being prescribed; and a September 2016 report of a small left knee effusion, with a full range of motion at the time, with the knee being injected with a medication. The outpatient treatment records are numerous over a long period of time, with scarce visits for knee problems, and scarce mention of knee problems, except for in contexts like "past medical history" and "review of systems" sections of medical records, without actual treatment of significant current knee problems being the subject of the medical records. With this being the case, we would expect to see more severe symptomatology in the treatment records, if what the Veteran says is true, about her flare-ups. We find that the evidence discredits her June 2020 and August 2021 statements, and that the VA examination reports and other evidence of record provide an adequate basis to render a fair and impartial decision on the issues before the Board. In conclusion, the preponderance of the evidence is against the claims and there is no reasonable doubt to be resolved in the Veteran's favor concerning them. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). T.D. JONES Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.