Citation Nr: 21010106 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-09 190 DATE: February 24, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right knee disability is denied. Entitlement to a rating in excess of 10 percent for a left knee disability is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability does not more nearly approximate flexion limited to 30 degrees. 2. The Veteran’s left knee disability does not more nearly approximate flexion limited to 30 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a right knee disability has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5099-5010. 2. The criteria for entitlement to a rating in excess of 10 percent for a left knee disability has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5099-5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active military service from October 2001 through February 2002. These matters come to the Board of Veterans’ Appeals (the Board) from a July 2006 rating decision issued by the regional office (RO). The matter was remanded by the Board in November 2018 for further development and an updated VA examination of the Veteran. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). In May 2018, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. Increased Rating Entitlement to a rating in excess of 10 percent for right and left knee disability is continued The Veteran contends he is entitled to a rating in excess of 10 percent for his right and left knee disability, due to the progressive worsening of both knees since leaving service in 2002. Specifically, the Veteran was diagnosed with having lower leg stress factures during service and patellofemoral pain syndrome bilaterally. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Board concludes that the Veteran's disabilities have not significantly changed and that a uniform rating is warranted throughout the appeal period. The Veteran’s knee disability was rated pursuant to Diagnostic Code 5099-5010. Diagnostic Code 5099 represents an unlisted disability requiring rating by analogy to one of the disorders listed under 38 C.F.R. § 4.71a; 38 C.F.R. §§ 4.20, 4.27. Pertinent regulations do not require that all cases show all the findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In the present case, the Veteran’s knee disabilities have been rated as analogous to traumatic arthritis under Diagnostic Code 5010. Diagnostic Code 5010 is for arthritis due to trauma, substantiated by X-ray findings and provides for rating as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. 38 C.F.R. § 4.71a , Diagnostic Codes 5256 through 5263 set forth the relevant provisions for disabilities of the knee. Diagnostic Code 5256 governs ankylosis of the knee, and provides a 30 percent rating for knee ankylosis in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is provided for knee ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is provided for knee ankylosis in flexion between 20 degrees and 45 degrees. A 60 percent rating is provided for knee ankylosis that is extremely unfavorable, in flexion at an angle of 45 degrees or more. The Schedule provides that the normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5257 governs other impairment of the knee, providing respective ratings of 10, 20, and 30 percent for slight, moderate, or severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a. Diagnostic Code 5258 provides for a maximum 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Id. Diagnostic Code 5259 provides a maximum 10 percent rating for removal of semilunar cartilage that is symptomatic. Id. Diagnostic Code 5260, which governs limitation of leg flexion, provides a zero percent rating for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and a maximum of 30 percent for flexion limited to 15 degrees. Id. Diagnostic Code 5261, which governs limitation of leg extension, provides a zero percent rating for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and a maximum of 50 percent for extension limited to 45 degrees. Id. Diagnostic Code 5262 provides that impairment of the tibia and fibula characterized by malunion with slight knee or ankle disability warrants a 10 percent evaluation, malunion with moderate knee or ankle disability warrants a 20 percent evaluation, and malunion with marked knee or ankle disability warrants a 30 percent rating. Impairment of the tibia and fibula manifested by nonunion with loose motion, requiring a brace, warrants a maximum 40 percent rating. Id. Diagnostic Code 5263 provides a maximum 10 percent rating for genu recurvatum that is acquired and traumatic, with weakness and insecurity in weight-bearing objectively demonstrated. Id. The VA General Counsel has issued a precedential opinion holding that “separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg.” See VAOPGCPREC 9-2004 (September 17, 2004). In addition, a Veteran may be assigned separate ratings for arthritis with limitation of motion under Diagnostic Code 5260 or 5261 and for instability under Diagnostic Code 5257. See VAOPGCPREC 23-97 (July 1, 1997). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Normal range of knee motion is extension to 0 degrees and flexion to 140 degrees. 38 C.F.R. § 4.71, Plate II. Disability of the musculoskeletal system is primarily the inability, due to damage in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is 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; see Burton v. Shinseki, 25 Vet. App. 1 (2011). The February 2002 rating decision granted service connection for the Veteran’s bilateral knee disability. The rating decision evaluated the knees to be 10 percent disabling under Diagnostic Code 5099-5010, due to the fact that patellofemoral syndrome does not have its own evaluation criteria in the VA regulations. In October 2011 the Veteran filed a claim for a increased rating and this appeal followed. The Veteran underwent a VA examination in July 2012. The VA examiner noted that the Veteran’s knee disability impacted his ability to work. The examiner also found additional limitation of ROM following repetitive use testing. The right knee showed 0 degrees of extension, flexion at 130 degrees, decreasing to 125 on repetitive use test. The left knee showed 0 degrees of extension, flexion at 125 degrees, with a decrease to 115 degrees on repetitive use testing. The VA examiner noted the contributing factors of disability to be less movement than normal and pain on movement. Joint stability testing was normal. The Veteran received another VA examination in February 2018. The right knee exhibited abnormal ROM, with flexion measured at 100 degrees and extension at 100 to 0 degrees. Both flexion and extension caused pain for the Veteran. The left knee also exhibited abnormal ROM, with flexion being measured at 100 degrees and extension at 90 to 0 degrees. The Veteran reported pain during the ROM testing in the left knee. The repetitive use testing showed additional loss of function and limitation of motion in the left knee as well. The VA examiner reported that the right and left knee pain significantly limited the functional ability of the Veteran. The examiner also determined that the examination took place during a flare-up of the right and left knee. The examiner stated that the flare-up in each knee limited functional ability and caused the Veteran to experience functional loss. Finally, the VA examination stated that the additional contributing factors of disability were less movement than normal, weakened movement, swelling, disturbance of locomotion, and interference with sitting and standing. In May 2018, the Veteran received a board hearing. The Veteran reported the pain he felt when walking up and down stairs, as well as the difficulty he had standing, sitting, or walking for long periods of time. The Veteran also claimed he could not lift objects and had trouble sleeping because the pain in his knees was constant. The Veteran was found to be competent to report his pain and discomfort. Layno v. Brown, 6 Vet. App. 465 (1994). In November 2019 the Board officially remanded the Veteran’s claim for an additional VA examination and further development. The Board found that they lacked the expertise needed to determine the extent of any worsened symptoms the Veteran claimed he was experiencing. In November 2019, the Veteran received another VA examination. The Veteran reported that he cannot put pressure on his knees going down a flight of stairs and that he has fallen before. He also noted that they don’t feel stable and they “vibrate” and “wiggle” without him moving his leg. The physical findings from the exam show abnormal ROM in the right and left knee. The right knee was measured, showing flexion from 0 to 90 degrees and extension from 90 to 0 degrees. The Veteran reported that both the flexion and extension of the right knee caused him pain. The examiner noted the pain and how it caused functional loss. There was no evidence of tenderness or crepitus in the right knee. The left knee was also abnormal, showing flexion from 0 to 70 degrees and extension from 70 to 0 degrees. The Veteran reported he was in pain from both the flexion and extension and the examiner noted that the pain made the Veteran experience functional loss. There was no evidence of tenderness or crepitus in the left knee. Both knees underwent repetitive use testing and were found not to cause functional loss or limitation of motion for the Veteran. Both knees were also examined for joint instability and none was found. The examiner stated that the listed diagnosis of stress fractures with patellofemoral pain syndrome impact the Veteran’s ability to perform occupational tasks, such as sitting, standing, walking and lifting. Based on all the evidence presented in the record, the Board finds against the claim. In this regard, at worst, the evidence has revealed flexion of the left and right knee limited to 70 and 90 degrees respectively. These findings do not justify an evaluation higher than 10 percent disabling based on limitation of flexion. Since the Veteran demonstrates painful motion of the knee, the Board considered whether a higher rating was warranted based upon pain; however, even after repetitive testing, flexion did not more nearly approximate motion limited to 30 degrees. See, 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board has considered whether a separate compensable evaluation is warranted based on limitation of extension. 38 C.F.R. § 4.71a, Diagnostic Code 5261. It is shown, however, that the Veteran has retained full extension throughout this appeal. As such, a separate rating is not warranted for limitation of extension. (Continued on the next page)   Furthermore, the evidence is devoid of a showing of ankylosis (DC 5256), instability (5257) or impairment of the tibia and fibula (5262). As such, these diagnostic codes are not applicable. Significantly, although the Veteran complained that his joint vibrated or wiggled, joint stability tests throughout the period on appeal consistently The Board acknowledges the Veteran's assertions that his disability is more severe than evaluated to include his reports of additional pain, swelling, and limitation of motion. The Veteran is competent to report pain and discomfort. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board has also considered the pleadings and reports, and finds that the Veteran is credible in reporting the relative severity of his disability. Past examinations disclosed some progressively worsening limitation, but nothing approximating the functional equivalent of limitation of flexion to 30 degrees or less. Although the Veteran has reported knee pain, pain is considered in the current rating evaluation. See 38 C.F.R. § 4.59. Neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation, i.e., the functional equivalent of limitation of flexion between 16 and 30 degrees; limitation of extension between 15 and 19 degrees; or limitation of flexion limited to 45 degrees or less and limitation of extension to 10 degrees or more. 38 C.F.R. § 4.71a. As outlined above, examiners conducted repetitive testing and found that the condition did not result in additional functional loss that more nearly approximated the criteria for higher ratings. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no other provision upon which to assign a higher rating. Accordingly, the claim is denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.L. Aumiller, 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.