Citation Nr: 21011101 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 19-22 705 DATE: February 26, 2021 ORDER Entitlement to a rating in excess of 20 percent for service-connected degenerative joint disease of the left knee manifested by limitation of flexion is denied. FINDING OF FACT The Veteran’s left knee degenerative joint disease is manifested by flexion limited to, at worst, 60 degrees during a flare-up. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for left knee degenerative joint disease with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5010, 5260 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1964 to February 1966. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case has previously been before the Board, most recently in January 2020, at which time the issue on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. A review of the record shows that in a July 2020 rating decision, the Veteran was granted a higher rating for his left knee limitation of extension, and entitlement to a separate rating for impairment of the left knee manifested as instability and/or subluxation. There is no indication from the record that the Veteran has disagreed with the ratings or effective dates assigned in that decision. As such, those issues are not currently pending on appeal, and so, are not within the Board’s jurisdiction. Increased Rating – Left Knee Degenerative Joint Disease (DJD) The Veteran has asserted that he should have a higher rating for his service-connected left knee DJD as his symptoms are worse than those contemplated by the currently assigned ratings. As discussed above, the Veteran is in receipt of three separate ratings for his left knee disability. The rating currently on appeal is for left knee DJD manifested by limitation of flexion. The Veteran is separately compensated for limitation of left knee extension, and left knee subluxation and/or instability. As the extension and subluxation and/or instability ratings are not currently on appeal, the Board will limit its discussion of the evidence to that pertinent to the claim for an increased rating for left knee DJD manifested by limitation of flexion pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260. At a December 2018 examination, the Veteran reported that his left knee disability was getting worse. The Veteran reported that his left knee disability made it hard to get up from sitting, and that his knee was achy. The Veteran denied flare-ups. The Veteran reported functional impairment caused by the knee to consist of difficulty standing after sitting for prolonged periods, inability to run, inability to walk at a swift pace, and an inability to bend down. Upon physical examination, left knee range of motion (ROM) testing revealed flexion to 110 degrees. The Veteran had pain on flexion, in both active and passive motion, but it did not result in or cause functional loss. There was no objective evidence of pain or tenderness to palpation of the left knee. There was pain on weight bearing and non-weight bearing, but there was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing, and there was no additional functional impairment following repetition. Muscle strength testing revealed decreased muscle strength with active movement against some resistance on flexion and extension of the left knee, but there was no muscle atrophy. Here was no left knee ankylosis. There was no history of left knee recurrent subluxation, lateral instability, or recurrent effusion. The Veteran did not have a left knee meniscal condition. The Veteran was noted to wear a knee brace for ambulating. The examiner noted that the Veteran’s left knee disability did impact his ability to work in that he was limited in running, kneeling, crawling, squatting, prolonged standing, prolonged walking, and performing high impact activities. At a January 2020 VA examination, the Veteran reported that his left knee disability continued to progress. He reported that his left knee would occasionally lock, which caused difficulty climbing stairs. He reported that he could no longer run, squat, or stand for prolonged periods. The examiner noted that the Veteran was a candidate for total knee arthroplasty (TKA). The Veteran reported flare-ups of his left knee where he experienced increased pain and stiffness. Upon physical examination, left knee active and passive ROM testing revealed flexion to 100 degrees. The Veteran had pain on flexion. There was mild to moderate tenderness or pain on palpation of the medial joint line, lateral joint line, posterior popliteal space, retropatellar area, and anserine bursa. There was pain on weight bearing and non-weight bearing, and there was objective evidence of crepitus. The Veteran was reported to be unable to perform repetitive testing due to intolerable pain. The examiner noted that the Veteran would be significantly limited by pain, fatigue, weakness, lack of endurance, and incoordination following repeated use over a period of time, resulting in flexion additionally limited to 80 degrees. The examiner noted that the Veteran would be significantly limited by pain, fatigue, weakness, lack of endurance, and incoordination during a flare-up, resulting in flexion additionally limited to 60 degrees. The examiner noted additional contributing factors of the Veteran’s left knee disability to consist of less movement than normal, swelling, instability of station, disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing was normal, and there was no muscle atrophy. There was no ankylosis. The Veteran was noted to have left knee recurrent effusion. The Veteran reportedly always worse a left knee brace, and occasionally used a cane for assistance with ambulation. The examiner noted that the Veteran’s left knee disability would impact his ability to work in that his left knee disability had progressed to the point where he would be unable to work long hours in cramped conditions, and he would be unable to knee, squat, or climb. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his left knee DJD with limitation of flexion. In this regard, there is no indication from the record that the Veteran has left knee flexion limited to 30 degrees or less. In fact, the Veteran’s left knee flexion was found to be limited to, at worst, 60 degrees. Further, the VA examiner considered additional impairment due to pain, fatigue, weakness, lack of endurance, and incoordination following repeated use over a period of time and during a flare-up; and the VA examiner accounted for additional functional limitation resulting from such when reporting the Veteran’s ROM. As such, even with consideration of all pertinent disability factors, there remains no reasonably basis for assignment of a rating in excess of 20 percent for left knee DJD with limitation of flexion. In fact, the Veteran does not currently meet the criteria for the assigned 20 percent rating for limitation of left knee flexion. As such, a higher rating is not warranted at this time. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2019). As discussed above, the Veteran is already in receipt of separate compensable ratings for left knee limitation of extension and recurrent subluxation and/or instability. However, consideration has been given to assigning a separate rating under another diagnostic code pertaining to the knee. There is no indication from the record that the Veteran has left knee ankylosis, impairment of the tibia or fibula, or genu recurvatum. The Board acknowledges that the record indicates that the Veteran underwent a left knee meniscectomy in the 1960. However, there is no indication from the record that the Veteran has symptomatic residuals from that procedure. Further, as discussed above, the Veteran does not currently meet the criteria for the 20 percent rating he is currently in receipt of for left knee DJD limitation of flexion, as such, the Board can only deduce that the rating is assigned based on pain. So, even if the Veteran had pain as a symptom of his prior meniscectomy, assignment of a separate compensable rating for pain in light of the current 20 percent rating for left knee DJD with limitation of flexion, would be in violation of 38 C.F.R. § 4.14, and would be impermissible under the law. As such, even with consideration of all pertinent disability factors, the Board finds that entitlement to an additional, separate, compensable rating for the left knee is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5259, 5262, 5253 (2019). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 20 percent for DJD of the left knee with limitation of flexion is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Andrew Ledman II 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.