Citation Nr: 21005589 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-59 061 DATE: February 2, 2021 ORDER An initial 10 percent rating under DC 5260 for right knee chondromalacia patellofemoral ligament (right knee disability) effective August 19, 2013, is granted. The claims of entitlement to an initial rating higher than 10 percent for the period prior to October 14, 2020, and higher than 20 percent thereafter, for right knee disability under DC 5260, is denied. An initial 30 percent rating under DC 5257 for right knee disability, effective October 14, 2020, is granted. A separate 20 percent rating under DC 5258 for right knee disability, effective September 18, 2020, is granted. FINDINGS OF FACT 1. The Veteran’s right knee has manifested with painful and limited flexion since he filed his claim. Prior to October 14, 2020, his right knee manifested with painful limited flexion that well-exceeded 45 degrees. Starting from October 14, 2020, his right knee manifested with painful limited flexion that well-exceeds 15 degrees. 2. Instability was not present until October 14, 2020, and it is severe. 3. At a September 18, 2020, private treatment appointment, he complained of locking of the right knee, along with pain. Shortly thereafter, MRI revealed effusion into the joint. CONCLUSIONS OF LAW 1. The criteria are met for an initial 10 percent effective August 19, 2013, for right knee disability under DC 5260. The criteria are not met for a rating higher than 10 percent prior to October 14, 2020, or higher than 20 percent thereafter. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5260. 2. The criteria are met for an initial rating of 30 percent for right knee disability under DC 5257 effective October 14, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257. 3. The criteria are met for a separate 20 percent rating effective September 18, 2020, for right knee disability under DC 5258. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1984 to September 1991. This appeal is from a November 2013 rating decision. In January 2020, the Veteran had a personal hearing before the undersigned VLJ. Thereafter, in April 2020, the Board remanded the issues the initial rating for the right knee and service connection for the left knee for additional development. Since then, service connection for has been granted for the left knee, and therefore that issue is no longer before the Board. The initial rating to be assigned the right knee has returned to the Board. The Board notes that the development ordered by the Board was substantially completed. The Veteran was asked to authorize the release of any private records that he wished to be reviewed, to which he responded in June 2020 that he did not. He did submit some private records. He was provided a VA examination, which the Board finds adequate, and which the Veteran has not raised any objections to. Accordingly, adjudication on the merits may proceed. 1. An initial 10 percent rating under DC 5260 for right knee chondromalacia patellofemoral ligament (right knee disability) effective August 19, 2013, is granted. The claims of entitlement to an initial rating higher than 10 percent for the period prior to October 14, 2020, and higher than 20 percent thereafter, for right knee disability under DC 5260, is denied. 2. An initial 30 percent rating under DC 5257 for right knee disability, effective October 14, 2020, is granted. 3. A separate 20 percent rating under DC 5258 for right knee disability, effective September 18, 2020, is granted. Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s knee is currently rated under two separate diagnostic codes. Under DC 5003-5260, he has a 0 percent from August 19, 2013, to September 7, 2016, a 10 percent from September 8, 2016, to October 13, 2020, and a 20 percent starting from October 14, 2020. Under DC 5257, he has a 20 percent rating effective from October 14, 2020. His right knee limited flexion is rated under DC 5003-5260, which means that his disability is rated under DC 5260 (for limited flexion) because of DC 5003 (for degenerative arthritis). 38 C.F.R. § 4.71a; see also 38 C.F.R. § 4.27 (explaining and setting forth the procedure for assigning diagnostic criteria to unlisted disabilities, including the use of hyphenated ratings). Under DC 5003, degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limited flexion of the knee is rated under DC 5260, which assigns a 0 percent rating when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and, a 30 percent rating when limited to 15 degrees. Id., DC 5260. Normal range of motion of the knee is from 0 to 140 degrees. Id., Plate II. Limited extension of the knee is rated under DC 5261, which assigns a 0 percent rating when extension is limited to 5 degrees; a 10 percent when limited to 10 degrees; a 20 percent when limited to 15 degrees; a 30 percent when limited to 20 degrees; a 40 percent when limited to 30 degrees; and, a 50 percent when limited to 45 degrees. Id., DC 5261. The Board notes, when rating disabilities based on limited motion, the rater must consider any functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness, along with the schedular criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40 and 4.45. Painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); 38 C.F.R. § 4.59. Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran’s right knee rating based on limited motion has been staged into three separate periods. In regard to the period from August 19, 2013, to September 7, 2016, the record shows that his worst flexion measurement was to 95 degrees, at a private treatment appointment in June 2014. This does not provide evidence that a higher rating is warranted. 38 C.F.R. § 4.71a, DC 5260. During the Veteran’s hearing, he reported that he had had painful motion for the entire period on appeal. The Board finds that the Veteran is competent to report his own symptoms, and notes that private treatment records from June 2014 also show painful motion at the end of his range. Painful motion warrants at least the minimum rating for the joint. Accordingly, a 10 percent initial rating for the right knee disability under DC 5260 is warranted starting from the effective date of service connection, because of his painful motion. 38 C.F.R. § 4.59, 4.71a, DCs 5003, 5260. The next inquiry is whether a rating higher than 10 percent is warranted at any time prior to October 14, 2020, when his 20 percent rating takes effect. Similar to the above, the worst range of motion measurement taken prior to October 14, 2020, was 95 degrees at the June 2014 private appointment. This does not meet the criteria for a higher rating. 38 C.F.R. § 4.71a, DC 5260. The Board considered whether the Veteran’s functional loss during that period warrants a higher rating, but does not find support for that in the evidence. At the September 2016 VA examination, he complained of increased pain after prolonged standing or walking. At private treatment in June 2014, he reported that his pain was aggravated by prolonged sitting, bending and squatting, and use of the stairs. He reported that he avoided using the stairs, but that he worked out at the gym and it was feeling better. The Board acknowledges his reports of functional loss, but there is nothing showing or suggesting that his functional limitations ever reduced his flexion to 30 degrees or less, or to an equivalent of that level of loss, prior to October 14, 2020, which is required for the next higher rating. 38 C.F.R. §§ 4.40, 4.59; DeLuca, supra. The September 2016 VA examiner opined that pain would significantly limit function over time, but did not provide an opinion on additional loss in terms of range of motion. At that examination, the Veteran had full, normal flexion. As mentioned, his worst range of motion measurement during this time-frame was to 95 degrees. These findings significantly exceed 30 degrees. The Veteran was given the opportunity following the Board’s remand to provide additional private treatment records, but he specifically declined to authorize VA to obtain records. He did submit some records since the last remand, but they do not pertain to this time-frame. Accordingly, a higher rating under DC 5260 based on functional loss is not warranted for the period prior to October 14, 2020. The next inquiry is whether the evidence shows entitlement to higher than 20 percent starting from October 14, 2020, which is the date of the most recent VA examination. At that examination, his flexion was reduced to 60 degrees, which is the worst flexion measurement shown in the record. This corresponds to a 0 percent rating under the applicable criteria. 38 C.F.R. § 4.71a, DC 5260. The examination report continues that the Veteran would have flexion reduced to 30 degrees during flares, which corresponds to a 20 percent rating, and is the basis of his current 20 percent. 38 C.F.R. §§ 4.40, 4.59; DeLuca, supra. The Board considered whether a higher rating is warranted, but does not find the evidence shows or suggests that his functional loss has ever reduced his flexion to 15 degrees or less, or to that level of disability, which is needed for the next higher rating. Id. The evidence does not show reduced extension at any time, or a suggestion that his functional loss reduces his extension. Accordingly, a rating under DC 5261 is not warranted. As discussed, the Veteran is assigned a separate 20 percent rating under DC 5257, which pertains to other impairment of the knee and is based on lateral instability or recurrent subluxation. Under this diagnostic code, a 10 percent rating is assigned for slight symptoms, 20 percent for moderate symptoms, and 30 percent for severe. 38 C.F.R. § 4.71a. After review of the evidence, the Board does not find that he is entitled to his rating under DC 5257 any earlier than currently assigned. The Board acknowledges that the record shows right knee laxity and subluxation in a June 2014 private treatment record, based on a positive patellar apprehension test. It does not contain any indication of severity. However, another June 2014 private treatment record shows a negative patellar apprehension test. Prior to that, in a December 2011 private treatment record and the October 2013 VA examination, tests for instability and subluxation were negative. Thereafter, a March 2015 VA treatment record shows the Veteran did not have any laxity. The September 2016 VA examination shows that clinical testing for lateral instability and subluxation were negative. The October 2020 VA examination shows that instability was diagnosed October 14, 2020. Accordingly, the preponderance of the evidence weighs against finding the Veteran had chronic instability or subluxation prior to October 14, 2020. Id., DC 5257. The next inquiry is whether a rating higher than 20 percent is warranted for instability and subluxation. The October 2020 VA examination shows that objective testing was conducted for instability of the right knee. Four different tests were conducted, each testing stability of the joint in different areas: anterior instability, posterior instability, medial instability, and lateral instability. He tested positive in each one, showing instability of the joint allowing between 5 and 10 millimeters of movement in each test. Although the results for each test were mid-range, that he was positive in each one shows fairly significant impairment that the Board finds corresponds with severe. Accordingly, a 30 percent rating is warranted from October 14, 2020. This is the highest rating available under DC 5257. Id. The record shows that he has recently been shown to complain of episodes of locking, and thereafter, that he was shown to have effusion into the joint. He has complained about pain in the knee, not during flexion, throughout the appeal period. This evidence raises the issue of entitlement to a separate rating under DC 5258. Under this code, a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. In December 2011, before service connection was granted, the Veteran was shown to have small joint effusion, but he denied locking. The October 2013 VA examiner did not identify any meniscus symptoms. In a June 2014 private record, it was noted the Veteran did not have any right knee mechanical symptoms, which would include locking. The September 2016 VA examiner indicated the Veteran had a positive history for effusion, as per the Veteran’s report, but that there was no effusion at that time, and no locking. At a September 18, 2020, private treatment appointment, the Veteran complained of episodes of locking. This resulted in his doctor ordering an MRI, which was conducted in October 2020, and which showed effusion into the right knee. Accordingly, in resolving all doubt in his favor, the Board finds that a separate 20 percent rating effective September 18, 2020, is warranted. The record does not show ankylosis, genu recurvatum, or trouble of the tibia and fibula. Accordingly, separate ratings are not warranted under the diagnostic codes pertaining to these symptoms. In sum, the Board is increasing his 0 percent rating under DC 5620 to 10 percent for the period prior to September 18, 2016, and continuing the 10 percent that was previously assigned prior to October 14, 2020. The Board is increasing his 20 percent rating under DC 5257 to 30 percent, effective October 14, 2020. The Board is granting a 20 percent rating under DC 5258, effective September 18, 2020. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Gibson 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.