Citation Nr: 21005899 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-09 441 DATE: February 2, 2021 ORDER Entitlement to an evaluation in excess of 30 percent for degenerative joint disease of the left knee and calcified tendonitis with limited extension is denied. FINDING OF FACT The evidence of record does not show that the Veteran’s left knee extension is limited to 30 degrees due to his left knee disability. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for degenerative joint disease of the left knee and calcified tendonitis with limited extension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1971 to June 1973. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the period on appeal, the RO has increased the Veteran’s disability rating for a left knee disability to 30 percent, effective August 31, 2011. See January 2015 Rating Decision. However, as the highest possible rating for the disability has not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). In December 2017, the Board remanded the matter for further development. Now the matter is returned to the Board. The Board notes that the claim of the Veteran’s entitlement to an effective date earlier than August 31, 2011 for the award of a 30 percent disability rating for the left knee disability was denied in the Board’s previous decision in November 2019. Thus, now the Board will examine whether the Veteran has been entitled to an evaluation in excess of 30 percent for a left knee disability for the period beginning August 31, 2011. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2019). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2019). Otherwise, it will assign the lower rating. Id. Separate evaluations may be assigned for limitation of flexion and extension of the same joint. See VAOPGCPREC 09-04 (September 17, 2004). Specifically, when a veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. The normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II (2019). The Veteran’s left knee disability is currently evaluated under Diagnostic Code 5261 for limitation of extension. Under Diagnostic Code 5261, in pertinent part, a 40 percent evaluation is warranted for extension limited to 30 degrees; and a maximum of 50 percent evaluation is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2019). In an October 2012 radiology report for the left knee, the examiner reported that there were no changes from the previous study of October 12, 2011. Mild degenerative changes were noted in the medial compartment of the tibiofemoral joint. On November 2012 VA examination, the examiner noted the Veteran’s diagnosis of degenerative joint disease of the left knee. The Veteran reported that his left knee is becoming more painful and takes Tramadol and Ibuprofen for the pain. He stated that his left knee swells, and has had a couple of falls due to his knee giving out. The examiner noted that the Veteran did not report that the flare-ups impact the function of his knee. The range of motion of the left knee was measured at: flexion to 95 degrees with painful motion beginning at 80 degrees and extension to 20 degrees. The Veteran was able to perform repetitive-use testing with 3 repetitions, and the examiner noted that the left knee flexion was further limited to 90 degrees and extension limited to 20 degrees after the repetitive-use testing. The Veteran had tenderness or pain to palpation for the left knee joint line or soft tissues. The muscle strength testing for the left knee flexion and extension was normal. Joint stability tests, i.e., anterior, posterior, and medial-lateral instability tests, were all normal. The examiner indicated that there is no evidence or history of recurrent patellar subluxation/dislocation, or X-ray evidence of patellar subluxation affecting the left knee. The examiner noted that the Veteran walks with a limp using a cane in his right hand, and he uses braces regularly and a walker occasionally. The examiner provided that the Veteran’s knee condition does not impact his ability to work. A January 2013 X-ray of the left knee showed no fracture-dislocation or arthritic change. There was no evidence of soft tissue swelling or radiopaque foreign body or abnormal calcification. An April 2015 MRI of the left knee showed normal menisci, anterior and posterior cruciate ligaments, medial and lateral collateral ligaments, and bone marrow signal. For articular cartilage, minor patellofemoral arthrosis was shown. On October 2015 VA examination, the examiner noted the Veteran’s diagnosis of left knee joint osteoarthritis. The Veteran reported worsening of the left knee condition. The examiner noted that the MRI of the left knee taken in April 2015 showed “minor patellofemoral arthritis.” The Veteran did not report flare-ups of the left knee. The examiner noted that the range of motion of the Veteran’s left knee was all normal without pain being noted on examination. The examiner indicated that there was no evidence of pain with weight bearing, and no objective evidence of localized tenderness or pain on palpation of the knee joint or associated soft tissue. The Veteran was able to perform repetitive-use testing with at least 3 repetitions, and there was no additional functional loss or range of motion afterwards. The examiner reported that the Veteran was not being examined immediately after repetitive use over time and is unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over a period of time. The Veteran did not have a reduction in left knee muscle strength or muscle atrophy, or ankylosis of the left knee. The examiner noted that the Veteran does not have history of recurrent subluxation, lateral instability, or recurrent effusion of the left knee. The Veteran has not had a meniscus condition or a surgery to his left knee. The examiner noted the Veteran’s occasional use of a left knee brace for pain and stability. The examiner provided that the Veteran’s left knee condition does not impact his ability to perform occupational tasks. Following the Board’s December 2017 remand order, the Veteran was afforded another VA examination in March 2018. On March 2018 VA examination, the examiner noted the Veteran’s diagnosis of left knee strain. The Veteran reported that he experiences daily constant pain of 10 out of 10 level. He stated that he falls easily and was given fall alarm by VA. He also provided that he has difficulty in walking or standing for a prolonged period, running, climbing up the stairs, bending over, and lifting. The left knee range of motion was measured at: flexion to 90 degrees and extension to 0 degrees. The examiner noted that the Veteran’s range of motion is limited due to pain, and there was evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation in upper and medial aspects. There was no objective evidence of crepitus. The examiner indicated that the Veteran was not able to perform repetitive-use testing with at least 3 repetitions due to an increase in pain with motion. The examiner provided that pain, fatigue, weakness, lack of endurance, and incoordination significantly limit functional ability with repeated use over a period of time, but indicated that the examiner was unable to describe such limitation in terms of range of motion. The examiner noted that the examination was being conducted during a flare-up, and the Veteran is unable to tolerate the significant pain. There was no reduction in left knee muscle strength or left knee ankylosis found during the examination. The examiner noted that there is no history of recurrent subluxation or lateral instability of the left knee. The examiner reported that a joint stability testing for the left knee was performed, but no joint instability found. The Veteran did not have a meniscus condition. The examiner noted the Veteran’s constant use of a brace, cane, and walker. The examiner provided that the Veteran’s left knee condition impacts his ability to perform occupational tasks since he needs to avoid activities that aggravates the symptoms. The Veteran’s treatment record shows that the Veteran has had falling incidents due to his knee “giving out” or “catching” at times. See e.g., May 2017 Rheumatology Note; July 2018 Addendum Note. As to the Veteran’s lateral instability of the left knee, a VA examiner opined in December 2018 that it is less likely than not that the Veteran’s has a history of lateral instability of the left knee. The examiner noted the Veteran’s description of his left knee “giving out” in multiple treatment reports, but explained that “giving out” is a phrase commonly used by a lay person in describing a fall related to a knee problem. The examiner provided that “giving out” is not a medical term, and it is not synonymous with lateral, medial, anterior, or posterior instability, but serves an indicator for an examiner to look for actual physical sign of such instability. The examiner emphasized that none of the previous physical examination reports showed any lateral instability of the Veteran’s left knee found by medical examiners. As stated above, the evidence must show that the Veteran’s left knee disability is resulting in left knee extension limited to 30 degrees in order to warrant the next higher disability rating of 40 percent. However, the Board finds that the evidence of record does not show that the Veteran’s left knee extension is limited to 30 degrees due to his left knee disability. The Board notes that the November 2012 VA examination showed the left knee extension to 20 degrees, but all other examinations showed lesser degree of limitation of the left knee extension. Consequently, the Board finds that the Veteran’s entitlement to an evaluation in excess of 30 percent for degenerative joint disease of the left knee and calcified tendonitis with limited extension is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261 (2019). The Board also considered whether the Veteran is entitled to additional evaluations for his current left knee disability under Diagnostic Codes 5256 (knee ankylosis), 5257 (recurrent subluxation or lateral instability), 5258 (semilunar cartilage dislocation), or 5260 (limitation of flexion). However, the evidence does not show that the Veteran has had left knee ankylosis, history of recurrent subluxation or lateral instability, or a meniscus condition. Also, the evidence must show that the Veteran’s left knee flexion is limited to 45 degrees in order for him to receive a compensable evaluation under Diagnostic Code 5260 for limitation of flexion, but such limitation has not been shown. Thus, the Board finds that an additional evaluation for the left knee disability, other than the current evaluation under Diagnostic Code 5261, is not warranted at this time. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.