Citation Nr: 21005586 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-15 488 DATE: February 2, 2021 ORDER Entitlement to a rating in excess of 10 percent for service-connected left knee disability on the basis of limitation of motion is denied. Entitlement to a separate 10 percent rating, but no higher, for mild left knee instability is warranted from November 20, 2012. FINDING OF FACT Throughout the appeal period, the Veteran’s left knee disability has been manifested by painful limitation of flexion to no less than 125 degrees and no more than mild instability requiring use of a brace. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left knee disability based on limitation of motion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for a separate rating of 10 percent, but no higher, for left knee disability based on instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1977 to October 1981. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2014 rating decision, the RO increased the Veteran’s rating to 10 percent disabling effective November 20, 2012, for painful motion under 38 C.F.R. § 4.59. In January 2017, the Veteran and his spouse testified during a Board hearing conducted before the undersigned. The Board remanded the matter for further development in November 2017 and January 2020. General Rating Principles Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Other important factors include excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. Rating Criteria DC 5257 evaluates recurrent subluxation or lateral instability of a knee, and provides a 10 percent rating for slight instability, a 20 percent rating for moderate instability, and a 30 percent rating for severe instability. 38 C.F.R. § 4.71a, DC 5257. Under DC 5260, a 10 percent disability rating is assigned 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. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a 10 percent rating is warranted for limitation of extension to 10 degrees, a 20 percent rating is warranted for limitation of extension to 15 degrees, a 30 percent rating is warranted for limitation of extension to 20 degrees, a 40 percent rating is warranted for limitation of extension to 30 degrees, and a 50 percent rating is warranted for limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. 38 C.F.R. § 4.71, Plate II, shows that normal flexion and extension of the knee is from zero degrees to 140 degrees. It is possible to receive separate ratings for limitation of flexion (DC 5260) and limitation of extension (DC 5261) for disability of the same joint. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Analysis The Veteran’s service-connected left knee disability is currently rated at 10 percent under 38 C.F.R. § 4.71a, DC 5260, and 38 C.F.R. § 4.59 for painful limitation of flexion of the leg. The current appeal period before the Board is from November 20, 2012, the date of the Veteran’s claim, plus the one year lookback period. Throughout the appeal period, the Veteran has complained of pain that causes functional impairment and limits his range of motion. See June 2018 VA examination; January 2015 Statement of Accredited Representative; April 2014 Statement in Support of Claim; December 2013 Notice of Disagreement (NOD); December 2013 VA Form 21-4138, Statement in Support of Claim. In a March 2020 retrospective opinion, a VA examiner opined that the Veteran could flex his left and right knees from 0-140 degrees and 140-0 degrees from 2012 to 2018. He further opined that in 2018 the Veteran could flex his left knee from 0-135 degrees and 135-0 degrees on active and passive range of motion, and after more than 3 repetitions. The examiner stated that both knees were examined with weightbearing and non-weightbearing, and that the left knee has exhibited evidence of pain with weightbearing, non-weightbearing, and passive motion terminally and flexion since 2012. The examiner noted that the examination at which the Veteran first exhibited limited range of motion was 2018, and at that time his flexion was 0-135 degrees and his extension was 135-0 degrees. Before the 2018 examination, the examiner opined that the Veteran displayed full range of knee motion based on the history of examinations. With respect to functional loss due to flare-ups of the left knee since November 2012, the examiner opined that he would not expect any loss of range of motion with weightbearing and non-weightbearing and passive motion between 2012-2014. In other words, the examiner would expect the Veteran to have 0-140 degrees of flexion and 140-0 degrees of extension on both knees even with repetitive movements and flare-ups. With respect to range of motion at the 2014 examination, the examiner noted that the left knee’s range of motion was 0-140 degrees of flexion and 140-0 degrees of extension, and was measured repetitively, actively, and passively without pain. The examiner expected a change in range of motion due to pain and due to flare-ups of 0-130 degrees of flexion and 130-0 degrees of extension. The examiner noted that at the 2018 examination the Veteran’s left knee’s flexion was 0-135 degrees and extension was 135-0 degrees. This was measured repetitively, actively, and passively with evidence of pain on terminal passive motion in flexion and there was also evidence of pain with weightbearing and non-weightbearing that was mild in severity. The examiner expected that there would be a change in range of motion due to pain on repetitive movements of 0-125 degrees of flexion and 125-0 degrees of extension. He also expected there would be a change in range of motion due to painful flare-ups of 0-130 degrees of flexion and 130-0 degrees of extension. The examiner stated the left knee was “mild” in severity. During his June 2018 VA examination, the Veteran reported a sore, stiff knee that hurts when driving, climbing, or extended walking. The Veteran also reported that the knee clicks, pops, and swells, but he does not have instability. The Veteran denied experiencing limited activity but reported pain, flare-ups, and reduced range of motion. With respect to the left knee, the examiner noted that flexion was 0-135 degrees and extension was 135-0 degrees. The examiner noted that pain in the left knee limited range of motion, flexion in particular. The examiner also observed that the left knee exhibited pain with weightbearing and evidence of crepitus. The examiner reported that repetitive use did not limit the functioning of either knee. The examiner stated that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination limited the functional ability of the left knee with repeated use over time. The examiner’s rationale was that the Veteran was not examined after repetitive use over time. With respect to flare-ups, the examiner noted reduced flexion of 0-130 degrees and reduced extension of 130-0 degrees due to flare-ups in the left knee. The examiner measured full muscle strength in both knees and no ankylosis in either knee. The examiner measured joint stability as normal in both knees with no history of recurrent effusion. The examiner noted that the Veteran has never had recurrent patellar dislocation (shin splints), stress fractures, or any other tibial and/or fibular impairment. The examiner also noted no history of meniscus (semilunar cartilage) conditions. The examiner noted that the Veteran uses a sleeve on the left knee on a regular weekly basis for pain. The examiner opined that the Veteran’s knee condition did not impact his ability to perform occupational tasks. The examiner lastly noted that the Veteran’s left knee exhibited evidence of pain on weightbearing, non-weightbearing, and passive motion that was mild in severity. During the November 2014 VA examination, the Veteran reported increasing pain in the left knee. He reported that the pain increased throughout the week and “by the end of the week he is down for the weekend.” The Veteran reported pops in the knee with movement and he avoided ladders or stairs. The Veteran stated he experienced aggravation upon squatting, swelling about twice per month, and flare-ups that impacted his functioning. The examiner measured range of motion for both knees as a normal 0-140 degrees of flexion and 140-0 degrees of extension. The examiner noted that the Veteran’s left knee was able to perform repetitive use testing with at least 3 repetitions, but he had pain after 3 repetitions. The examiner noted that he did not observe the left knee after repetitive use over time; thus, he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time of the left knee. The examiner noted that painful flare-ups, which the Veteran reported experiencing on a weekly basis, reduced left knee flexion to 0-130 degrees but did not affect extension. The examiner noted that both of the Veteran’s knees had full strength, the left side did not have ankylosis, and neither knee exhibited instability. The examiner noted that the Veteran has never had a meniscus (semilunar cartilage) condition. The examiner also noted that the Veteran occasionally used a brace on the knee. The examiner lastly noted that the Veteran’s left knee condition did not impact his ability to perform occupational tasks. During the January 2013 VA examination, the Veteran reported knee pops while standing and pain upon walking or lifting. The Veteran denied swelling or loss of function. The Veteran reported his activities of daily living were normal, flare-ups impacted function, and he denied instability. The examiner measured the right knee flexion as 140 degrees or greater with no evidence of painful motion and extension as normal with no evidence of painful motion. The examiner noted left knee flexion was normal at 140 degrees or greater and there was no evidence of painful motion. Left knee extension was normal with no evidence of pain. The examiner measured right and left knee flexion and extension as normal after repetitive-use testing. The examiner noted no additional loss of motion in either knee after repetitive-use testing. The examiner measured full muscle strength and normal stability in both knees. The examiner noted the Veteran did not have a history of recurrent patellar subluxation/dislocation, and there was no evidence of shin splints, stress fractures, chronic exertional compartment syndrome, genu recurvatum, or leg-length discrepancy. The examiner noted that the Veteran did not use an assistive device. The examiner lastly observed the Veteran’s knee condition did not affect his ability to work. When considering the Veteran’s lay statements and the medical evidence of record including Deluca factors and functional loss with repetitive use and during flare-ups, the Board finds that a rating in excess of the 10 percent rating currently assigned is not warranted at any time during the appeal period, as flexion and extension have not been limited to less than 125 degrees at any point. See March 2020 retrospective opinion; June 2018 VA examination; November 2014 VA examination; February 2013 VA examination; see also DC 5260, 5261. Specifically, in the March 2020 retrospective opinion, the examiner noted that he would expect flexion and extension to be reduced to 125 degrees of movement accounting for pain. All other ranges of motion were higher than 125 degrees, even accounting for pain and flare-ups in weightbearing, non-weightbearing, passive, and active ranges of motion. To warrant a rating in excess of 10 percent for flexion and extension, those movements would need to be limited to 30 degrees for flexion or 15 degrees for extension. See 38 C.F.R. § 4.71a, DC 5260, 5261. The Veteran’s most impaired range of motion of 125 degrees is significantly higher than those thresholds. In addition, there is no medical or lay evidence of ankylosis, dislocated semilunar cartilage, tibia/fibula impairment, or genu recurvatum that would warrant a rating under DCs 5256, 5258, 5259, 5262, or 5263. Furthermore, the Veteran is already in receipt of the maximum 10 percent rating available under 38 C.F.R. § 4.59 for painful motion of the left knee. For these reasons, a rating in excess of 10 percent for a left knee disability based on limitation of motion is denied. However, the Veteran has competently and credibly testified that his left knee gives out and he falls (around three to 10 times per year), and that he uses a brace for stability purposes. See Board Hearing Transcript at 7; see also November 2014 VA examination report (noting occasional use of a brace). Although left knee joint stability testing has been normal throughout the appeal period, the Board finds the Veteran’s credible reports of instability warrant a separate rating of 10 percent, but no higher, under DC 5257. Finally, while the Veteran has two left knee scars from a 1979 arthroscopy, there is no evidence that they are painful, unstable, or have a total area greater than 39 square centimeters. See June 2018 VA examination report at 9; January 2013 VA examination report at 22. Thus a separate rating for left knee scars is not warranted. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.