Citation Nr: 21006643 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-06 068 DATE: February 4, 2021 ORDER A schedular rating in excess of 10 percent for a right knee disability, on the basis of substitution, is denied. FINDING OF FACT The Veteran’s right knee disability was productive of flexion functionally limited to no less than 80 degrees, with full extension. CONCLUSION OF LAW The criteria for a schedular rating in excess of 10 percent for a right knee disability were not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5256-63. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1953 to January 1955. The Veteran died in September 2019. The appellant is the Veteran’s surviving spouse. The RO recognized the appellant as a valid substitute claimant in place of the Veteran for the issue on appeal. Accordingly, the appellant has been substituted as the claimant for the purposes of all claim that were pending on the date of his death. This case has been advanced on the Board's docket. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran filed an increased rating claim for his right knee disability, which was denied by a September 2011 rating decision. In August 2014 and May 2017, the Board remanded the claim for further development. The Veteran asserted that he was entitled to a higher rating. The Veteran’s right knee disability was rated 10 percent under Diagnostic Code 5260. Diagnostic Codes 5258 and 5259 evaluate impairment of the semilunar cartilage. A 10 percent rating is assigned for removal of the meniscus that is symptomatic. A 20 percent rating is assigned for dislocated meniscus with frequent episodes of locking, pain, and effusion into the joint. Under Diagnostic Code 5260 for limitation of knee flexion, a noncompensable rating is assigned for flexion limited to 60 degrees. A 10 percent rating is assigned 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. Diagnostic Code 5261 evaluates limitation of knee extension. A noncompensable rating is assigned for extension limited to 5 degrees. A 10 percent rating is assigned 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. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5256 evaluates ankylosis of the knee, Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability, Diagnostic Code 5262 evaluates impairment of the tibia and fibula, and Diagnostic Code 5263 evaluates genu recurvatum. The medical record does not document any of these conditions. Therefore, these Diagnostic Codes are not applicable and will not be discussed further. The Veteran’s medical records show treatment for his right knee symptoms, but his medical records do not show findings consistent with a higher rating. Indeed, at examinations in July 2011, March 2013, December 2014, October 2015, March 2016, August 2016, and November 2016, he had intact range of motion. In September 2011, the Veteran was afforded a VA examination. He reported having flare-ups weekly that lasted for hours after climbing stairs, squatting, or pivoting on his right foot. On examination, he demonstrated right knee flexion to 110 degrees and extension to -11 degrees. The examiner noted that the Veteran had right knee locking due to a meniscectomy during his active service. The examiner indicated that repetitive use testing further limited the Veteran’s right knee flexion to 100 degrees. The examiner reported that the Veteran had crepitus, tenderness, pain at rest, weakness, and guarding of movement. In May 2014, the Veteran was afforded a VA examination. He denied having flare-ups. On examination, he demonstrated right knee flexion to 105 degrees with pain at 80 degrees and normal extension to 0 degrees. The examiner indicated that repetitive use testing resulted in no additional limitation of motion. The examiner indicated that repetitive use testing resulted in weakened movement, pain on movement, and disturbance of locomotion. The Veteran retained reduced 4/5 right knee strength. The examiner indicated that the Veteran had normal joint stability tests. The examiner indicated that the Veteran had no evidence or history of recurrent patellar subluxation/dislocation, shin splints, stress fracture, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The examiner indicated that the Veteran had a meniscectomy with residual signs and/or symptoms of an antalgic gait and limited range of motion. The examiner reported that he could not provide an additional limitation due to pain, weakness, or incoordination, including range of motion loss, as the evaluation must be done during the presence of a flare-up in order to objectively compare baseline limitations to flare-ups limitations. The examiner reported that to provide data for functional loss related to a possible future even such as a flare-up would be mere speculation. In September 2020, a VA examiner reviewed the Veteran’s claims file. The examiner reported that any functional impairment due to flare-ups could not be estimated as the examiner was unable to interview the Veteran prior to his death. The examiner reported that the Veteran needed to use a walker, at least in part due to his right knee disability. The Board finds that the criteria to assign a rating in excess of 10 percent for the Veteran’s right knee disability have not been met. The Veteran was assigned a 10 percent rating under Diagnostic Code 5260 for his right knee pain. Regarding a meniscal condition, while the May 2014 VA examiner indicated that the Veteran had undergone a right knee meniscectomy, the examiner reported that the Veteran had residual symptoms of an antalgic gait and limited range of motion. As such, the Veteran was not found to meet the criteria for a rating under Diagnostic Codes 5258 or 5259, since the Veteran’s meniscectomy resulted in limited range of motion, which is discussed more fully below. Accordingly, the Veteran was not found to meet even the criteria for a compensable rating under Diagnostic Code 5258, which requires a dislocated meniscus along with frequent locking and effusion, or a compensable rating under Diagnostic Code 5259, which would require removal of the meniscus that was symptomatic. Even if the Veteran met the criteria for a rating under Diagnostic Code 5259 for his meniscectomy, he would have been assigned a 10 percent rating under Diagnostic Code 5259 instead of a 10 percent rating under Diagnostic Code 5260, which would not result in an increased disability evaluation for his right knee disability. Regarding limitation of flexion, the September 2011 and May 2014 VA examiners indicated that the Veteran demonstrated right knee flexion, at worst, limited to 80 degrees when considering pain, which exceeds the 60 degree limitation equivalent to a noncompensable rating. Accordingly, the Veteran was not found to meet the criteria for even a noncompensable rating under Diagnostic Code 5260, which requires flexion to be limited to 60 degrees. Turning to limitation of extension, the Board finds that the criteria to assign a separate compensable rating under Diagnostic Code 5261 have not been met. The September 2011 and May 2014 VA examiners indicated that the Veteran had normal extension to 0 degrees or less, which exceeds the 5 degree limitation equivalent to a noncompensable rating. Accordingly, the Veteran was not found to meet the criteria for a noncompensable rating under Diagnostic Code 5261, which requires extension to be limited to 5 degrees. The Board has considered whether a higher disability evaluation was warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 for either knee. See also DeLuca, 8 Vet. App. 202. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The May 2014 VA examiner indicated that the Veteran had pain on flexion beginning at 80 degrees, which still exceeds the 60 degree limitation equivalent to a noncompensable rating. Furthermore, the May 2014 VA examiner indicated that the Veteran denied having flare-ups. The September 2020 VA examiner reported that any functional impairment due to flare-ups could not be estimated as the examiner was unable to interview the Veteran prior to his death. The Veteran’s treatment records do not document flexion or extension equivalent to even noncompensable ratings. As such, the evidence simply does not support the conclusion that the Veteran’s right knee disability resulted in findings consistent with a higher rating. Thus, a greater rating for limitations of flexion and extension are not warranted under DeLuca. While the Veteran was shown to experience right knee pain, the United States Court of Appeals for Veterans Claims has held that even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. Here, the Veteran consistently retained flexion and extension in excess of compensable ratings. As such, there is no basis for a higher rating under Diagnostic Codes 5260 or 5261. To the extent that it is argued that the Veteran’s range of motion was painful and therefore would merit a separate compensable rating under 38 C.F.R. § 4.59, that provision states that 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. However, here, the Veteran was assigned the minimum compensable ratings and was in receipt of a 10 percent rating under Diagnostic Code 5260 for his right knee pain, and a rating in excess of 10 percent based on pain alone was not warranted. Accordingly, a schedular rating in excess of 10 percent for the Veteran’s right knee disability were not met, and the claim is denied. Kelli A. Kordich Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.