Citation Nr: 21006085 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-09 735 DATE: February 3, 2021 ORDER Entitlement to a 10 percent rating, but not higher, prior to January 20, 2020, for a right knee disability due to limitation of motion is granted. Entitlement to a 10 percent rating, but not higher, prior to January 20, 2020, for a left knee disability due to limitation of motion is granted. Entitlement to a 20 percent rating, but not higher, as of January 20, 2020, but not earlier, for limited flexion of the right knee is granted. Entitlement to a 20 percent rating, but not higher, as of January 20, 2020, but not earlier, for limited flexion of the left knee is granted. FINDINGS OF FACT 1. From June 17, 2011, to January 19, 2020, the Veteran’s bilateral knee disabilities were manifested by painful motion of the knee with difficulty standing or walking. 2. As of January 20, 2020, the Veteran’s bilateral knee disabilities were manifested by flexion limited to 30 degrees, but not worse. CONCLUSIONS OF LAW 1. From June 17, 2011, to January 19, 2020, the criteria for a rating of 10 percent, but not higher, for a right knee disability based on functional limitation due to painful motion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262. 2. From June 17, 2011, to January 19, 2020, the criteria for a rating of 10 percent, but not higher, for a left knee disability based on functional limitation due to painful motion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262. 3. As of January 20, 2020, the criteria for a 20 percent rating, but not higher, for a right knee disability based on limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.27, 4.3, 4.40, 4.45, 4.68, 4.7, 4.71a, Diagnostic Code 5260. 4. As of January 20, 2020, the criteria for a 20 percent rating, but not higher, for a left knee disability based on limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.27, 4.3, 4.40, 4.45, 4.68, 4.7, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2000 to June 2000. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In March 2019, the Board remanded the claims for increased ratings for additional development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). In August 2018, the Veteran and the Veteran’s father testified before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. Increased Ratings Disabilities are generally rated based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board’s analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to painful motion, weakened motion, excess motion, fatigability, or incoordination on movement of a joint. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the 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. 38 C.F.R. § 4.59. Under Diagnostic Code 5260, limitation of flexion of the knee is rated 10 percent for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, diagnostic code 5260. Under Diagnostic Code 5261, limitation of extension of the knee is rated 10 percent for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, diagnostic code 5261. Separate ratings can be assigned for limitation of extension, limitation of flexion, meniscal disability, and instability of a knee. However, a separate rating may only be assigned where additional compensable symptomatology is shown which does not duplicate the symptomatology used to assign another rating. 38 C.F.R. § 4.14; VAOPGCPREC 09-04 (2004), 69 Fed. Reg. 59990 (2004); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56704 (1998); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined. 38 C.F.R. § 4.25. However, rating the same disability or the same manifestations under various diagnoses is not allowed. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as that would overcompensate the claimant for the actual impairment of earning capacity. Brady v. Brown, 4 Vet. App. 203 (1993); 38 U.S.C. § 1155. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994). Assignment of a particular diagnostic code depends on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532 (1993). One diagnostic code may be more appropriate than another based on factors such as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). To more accurately rate and compensate the Veteran’s disabilities, the Board has determined that as of January 20, 2020, existing ratings under Diagnostic Code 5262 based on a finding of slight knee disability due to impairment of the tibia or fibula, will be discontinued and replaced with ratings under Diagnostic Codes 5260 because the symptomatology being rated is the same, but a higher rating is warranted using Diagnostic Codes 5260 as of January 20, 2020. Service connection is not severed under those circumstances where the rating is replaced by a more advantageous rating for the Veteran. The slight disability of knee rated under Diagnostic Code 5262 prior to January 20, 2020, is better rated for limitation of flexion under Diagnostic Codes 5260 as of January 20, 2020. Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011). 1. Entitlement to a rating of 10 percent, but not higher, from June 17, 2011, to January 19, 2020, for a right knee disability 2. Entitlement to a rating of 10 percent, but not higher, from June 17, 2011, to January 19, 2020, for a left knee disability The Veteran filed a claim in June 2011 seeking increased ratings for a bilateral service-connected knee disabilities, rated 0 percent under Diagnostic Code 5262. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. Under diagnostic code 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that decisions are equitable and just. 38 C.F.R. § 4.6. On September 2011 VA examination, the Veteran reported pain on exertion and flare-ups every two to three weeks with reduced mobility. Joint motion was not otherwise affected. The knees were inflamed, swollen, and tender. Gait was antalgic. X-ray studies of the bilateral knees and tibia indicated probable right tibial enchondromas. Use of the knees was also affected by a lack of stamina, weakness or fatigue, decreased strength, and lower extremity pain. The examiner concluded that the Veteran was functionally limited to no more than 15 to 30 minutes standing and was unable to walk more than a few yards. During February 2012 VA knee examination, the Veteran reported chronic pain with prolonged standing and walking. Range of motion testing found flexion to 110 degrees on the right with pain at 75 degrees, and on the left to 115 degrees with pain at 90 degrees. Both knees had full extension to 0 degrees without pain. The examiner concluded that the right tibial enchondroma was less likely than not related to or caused by the service-connected right tibial plateau stress fracture. The examiner stated that the medical literature did not support a connection between fractures and the development of enchondromas. Moreover, the enchondroma appeared to be due to an overgrowth of cartilage. The Board finds that opinion was highly probative because it was based on a review of the claims file, provided by a trained medical professional, and supported by the medical literature. On December 2016 VA examination, the Veteran reported increased pain with activity. There was no history of knee procedures or orthopedic treatment. Active and passive range of motion testing were normal and without pain. The examiner found no functional loss. X-ray studies indicated a right tibia enchondroma or bone infarct and an enthesophyte of the left patella. At the August 2018 Board hearing, the Veteran testified that using stairs, walking, and driving were difficult. The Veteran did not wear a brace or receive physical therapy. On January 2020 VA knee examination, the Veteran reported daily, moderate flare-ups of both knees, lasting a few hours. The flare-ups caused difficulty walking more than a quarter of a mile. Range of motion testing found right knee flexion to 70 degrees and extension from 70 degrees to 0 degrees, and left knee flexion to 60 degrees and extension from 60 degrees to 0 degrees. The Veteran had pain in each knee at 30 degrees flexion and from 30 degrees extension. The Veteran has consistently reported pain to each medical examiner and in lay statements throughout the appeal period. The Board acknowledges that the December 2016 examiner found it unlikely that bilateral knee functional ability was significantly limited during flare-ups. The examiner, as a medically trained professional, is competent to provide an opinion and the Board finds the opinion credible. However, the Veteran is competent to report painful motion as that comes to one through the senses and requires only personal knowledge rather than medical expertise. Layno v. Brown, 6 Vet. App. 465 (1994). The Board has considered the other Diagnostic Codes related to the knee and leg. Prior to January 20, 2020, the record does not show symptoms more nearly approximating ankylosis, recurrent subluxation or lateral instability, semilunar cartilage damage, limitation of flexion to a compensable degree, limitation of extension to a compensable degree, or genu recurvatum. Thus, the assignment of higher ratings under those Diagnostic Codes is not appropriate. Because the Veteran has painful motion of both knees, 10 percent ratings are warranted from June 17, 2011, the date of receipt of the claim for increase, to January 19, 2020. The preponderance of the evidence is against the assignment of any higher ratings. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. 3. Entitlement to a rating of 20 percent, but not higher, as of January 20, 2020, but not earlier, for limited flexion of the right knee 4. Entitlement to a rating of 20 percent, but not higher, as of January 20, 2020, but not earlier, for limited flexion of the left knee On January 2020 VA knee examination, the Veteran reported daily, moderate flare-ups of both knees, lasting a few hours. The flare-ups caused difficulty walking more than a quarter of a mile. Range of motion testing found right knee flexion to 70 degrees and extension from 70 degrees to 0 degrees, and left knee flexion to 60 degrees and extension from 60 degrees to 0 degrees. The Veteran had pain in each knee at 30 degrees flexion and from 30 degrees extension with flareups. There was no history of recurrent subluxation or lateral instability and joint testing found no instability. Ratings under Diagnostic Code 5260 and Diagnostic Code 5261 more accurately reflect the severity of the Veteran’s impairments as of January 20, 2020. Ratings pursuant to those Diagnostic Codes will replace the rating previously assigned under Diagnostic Code 5262 for slight disability of the knee. In January 2020, the evidence shows that during flare-ups, bilateral knee flexion was reduced to 30 degrees due to pain. Under Diagnostic Code 5260, that limitation of flexion warrants a 20 percent rating. Extension of both knees was possible to 0 degrees despite painful flare-ups. Under Diagnostic Code 5261, extension to 0 degrees warrants a 0 percent rating. Therefore, a separate rating under Diagnostic Code 5261 is not warranted. The Board finds that the preponderance of the evidence is against the assignment of any higher rating under Diagnostic Code 5260 for limitation of flexion over the appeal period. Flexion of the knees was limited to no worse than 30 degrees when considering pain. The flexion measurements are consistent with no higher than a 20 percent rating under Diagnostic Code 5260. The weight of the evidence is against assigning a higher rating throughout the period of appeal under Diagnostic Code 5261 for limitation of extension of the knees. Extension of the knee was limited, at worst, to 0 degrees, with consideration of pain. The extension measurements are also consistent with no more than a 0 percent rating as extension was not shown to be limited, even when considering painful motion, flareups, and other functionally limiting factors. The Board acknowledges the January 2020 examiner’s conclusion that the Veteran’s pain and limitation of motion were not related to the service-connected knee disability. As a medically trained professional, the examiner is competent to provide an opinion. However, the examiner did not explain a medical basis for that opinion. The opinion is not supported by clinical findings, medical literature, or lay evidence. That weighs against the opinion. Therefore, it is of limited probative value. Because the Board cannot distinguish what may represent in nonservice-connected symptomatology, the Board will rate all knee symptoms shown. The Board has considered the other Diagnostic Codes related to the knee and leg. As of January 20, 2020, the record does not show symptoms more nearly approximating ankylosis, recurrent subluxation or lateral instability, semilunar cartilage damage, or genu recurvatum. Thus, the assignment of higher ratings under those Diagnostic Codes is not appropriate. Accordingly, resolving all doubt in the Veteran's favor, the Board finds that as of June 17, 2011, and until January 19, 2020, the Veteran is entitled to increased ratings of 10 percent, but not higher, for a bilateral knee disability under Diagnostic Code 5262 for slight knee disability following bilateral tibial plateau stress fracture, with consideration of 38 C.F.R. § 4.59. As of January 20, 2020, the Veteran is entitled to an increased rating of 20 percent, but not higher, for a bilateral knee disability under Diagnostic Code 5260 for limitation of flexion. Therefore, to that extent only the claim for increased ratings is granted. The Board finds that the preponderance of the evidence is against the assignment of any higher ratings. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(b). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals 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.