Citation Nr: 21006136 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-17 585 DATE: February 3, 2021 ORDER A rating in excess of 10 percent for patellofemoral syndrome of the left knee (hereinafter, “left knee disability”) is denied. FINDING OF FACT The record reflects that the Veteran’s service-connected left knee disability has been manifested by painful motion, but has not resulted in flexion limited to 30 degrees or less, extension limited to 10 degrees or more, recurrent subluxation or lateral instability, or any other symptomatology which would warrant a separate or higher rating. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1989 to March 2009. His decorations include the Southwest Asia Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The RO, in pertinent part, granted service connection and a zero percent (noncompensable) rating for patellofemoral syndrome of the left knee, effective April 26, 2012. In August 2019, the rating was increased to 10 percent, effective April 26, 2012. The issue on appeal was previously before the Board in February 2016, February 2018, and February 2020, when it was remanded for additional development. There has been at least substantial compliance with the Board’s remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a rating in excess of 10 percent for service-connected left knee disability Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Board notes that the Veteran’s service-connected left knee disability is currently evaluated as 10 percent disabling based on painful motion. Knee disabilities manifested by limitation of flexion are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 10 percent rating is warranted for limitation of flexion to 45 degrees. See 38 C.F.R. § 4.71, Plate II (2003). A 20 percent rating is warranted for limitation of flexion to 30 degrees, and a 30 percent rating is warranted for limitation of flexion to 15 degrees. Id. Knee disabilities manifested by limitation of extension are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5261. Ratings of 10, 20, 30, and 40 percent are warranted when extension is limited to 10, 15, 20, and 30 degrees, respectively. The highest evaluation, 50 percent, is warranted when extension is limited to 45 degrees. Id. Full range of motion of the knee consists of zero (0) degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated by the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In this case, even considering the Veteran’s complaints of pain, the record does not reflect that pain has resulted in his knee having flexion limited to 30 degrees or less or extension limited to 10 degrees or more. For example, a December 2012 VA examination noted the Veteran’s complaints of pain, but showed flexion to 140 degrees or greater, and extension to zero degrees. A subsequent September 2015 VA examination noted left knee flexion to 120 degrees, and extension to zero degrees. An April 2018 VA examination noted left knee flexion to 130 degrees, and extension to zero degrees. The most recent VA examination in August 2020 noted flexion to 135 degrees, and extension to zero degrees. Moreover, all of these examinations stated that there was no change with repetitive testing. The Board acknowledges that the case was remanded in February 2020 because the 2018 VA examination, including a 2019 addendum, did not adequately address whether there was additional functional impairment of the left knee with repeated use over time or during flare-ups. However, a subsequent August 2020 VA examination explicitly found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability of the left knee with repeated use over time, or during flare-ups. In making this determination, the examiner acknowledged that there was pain in weight bearing, non-weight bearing, and during passive motion. See Correia v. McDonald, 28 Vet. App. 158 (2016). VA General Counsel held in VAOPGCPREC 9-2004 that separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same joint. The precedent opinions of the VA General Counsel are binding on the Board. 38 U.S.C. § 7104. However, as indicated above, the record does not demonstrate that the Veteran has limitation of extension to the extent necessary to warrant a compensable rating under Diagnostic Code 5261. VA General Counsel also held in VAOPGCPREC 23-97 that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. General Counsel stated that when a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion which at least meets the criteria for a zero percent rating under Diagnostic Code 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more) in order to obtain a separate rating for arthritis. General Counsel subsequently held in VAOPGCPREC 9-98 that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Where additionally disability is shown, a veteran rated under Diagnostic Code 5257 can also be compensated under Diagnostic Code 5003, and vice versa. Moreover, an evaluation of a knee disability under Diagnostic Codes 5260 or 5261 does not preclude a separate evaluation under other Diagnostic Codes such as 5258 or 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). However, the Court indicated that such symptoms must be distinct and separate to warrant separate ratings under different diagnostic codes; i.e., the same manifestation of disability may not be compensated under more than one diagnostic code. Id. Disabilities manifested by ankylosis of the knee are evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5256. A 30 percent rating is warranted if the knee is ankylosed at a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. A 40 percent rating is warranted if the knee is ankylosed in flexion between 10 and 20 degrees; a 50 percent rating is warranted if the knee is ankylosed in flexion between 20 and 45 degrees; and a 60 percent rating is for application if the knee is ankylosed at an extremely unfavorable angle, in flexion at 45 degrees or more. Knee disabilities manifested by recurrent subluxation and lateral instability are evaluated in accordance with the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5257. Ratings of 10, 20, and 30 percent, respectively, are warranted for slight, moderate, and severe recurrent subluxation or lateral instability. Id. Under Diagnostic Code 5258, when there is cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint, a 20 percent is assignable. 38 C.F.R. § 4.71a. Under Diagnostic Code 5259, a 10 percent rating is assigned for cartilage, semilunar, removal of, symptomatic. This code does not provide for a disability rating in excess of 10 percent. 38 C.F.R. § 4.71a. Diagnostic Code 5262 provides criteria for rating impairment of the tibia and fibula. With malunion and slight knee or ankle disability, a 10 percent rating is assigned. Moderate knee or ankle disability warrants a 20 percent rating. A 30 percent rating is assigned when there is marked knee or ankle disability. When there is nonunion with loose motion, requiring brace, a 40 percent rating is warranted. 38 C.F.R. § 4.71a. Under Diagnostic Code 5263, when there is genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated), a 10 percent rating is warranted. This code does not provide for a disability rating in excess of 10 percent. 38 C.F.R. § 4.71a. The Board notes that the Veteran’s accredited representative referred to Diagnostic Code 5257 in an October 2020 written brief. However, the aforementioned VA examination reports consistently noted there was no history of subluxation and/or dislocation, nor lateral instability of the left knee. Moreover, joint stability tests were conducted during each of the examinations and were consistently normal. Therefore, the Board finds that a separate rating is not warranted under Diagnostic Code 5257. The Board further notes that the required manifestations for evaluation under Diagnostic Codes 5256 (knee, ankylosis), 5258 (cartilage, dislocated, semilunar), 5259 (symptomatic removal of semilunar cartilage), 5262 (tibia and fibula, impairment of), and 5263 (genu recurvatum) are not applicable, as the presence of ankylosis of the left knee, dislocation or removal of the semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum have not been demonstrated. For all these reasons, the Board finds that a rating in excess of 10 percent for the Veteran’s service-connected left knee disability is not warranted, to include any "staged" rating(s) pursuant to Fenderson and Hart, supra. In arriving at this conclusion, the Board is cognizant of the fact that the record indicates that the Veteran has used medication to treat his left knee, to include for pain. The Court has held that in assigning a disability rating, VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Here, however, there is no competent medical opinion, or other competent evidence, which demonstrates that he would have limitation of function of the left knee that would warrant higher or separate ratings but for the use of such medication. Moreover, he has already been assigned a 10 percent rating for painful motion under circumstances where he does not have limitation of flexion or extension to the extent necessary for a compensable rating under the applicable diagnostic codes. The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kitlas, John 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.