Citation Nr: 21011573 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-38 326 DATE: March 2, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee strain with iliotibial band syndrome (left knee disability) is denied. FINDING OF FACT The Veteran’s service connected left knee disability is not shown to have been manifested compensable limitations of flexion or extension, recurrent subluxation or lateral instability, dislocated or symptomatic post-removal semilunar cartilage, genu recurvatum, or malunion of tibia or fibula, and is not shown to have been ankylosed. CONCLUSION OF LAW A rating in excess of 10 percent is not warranted for the Veteran’s left knee disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who had active service from September 1993 to September 2013. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 Department of Veterans Affairs (VA) rating decision that granted service connection, and assigned a 0 percent rating, for the left knee disability, effective October 1, 2013 (the day following the date of separation from service) . In December 2018 and May 2020, the matter was remanded for additional development. A January 2020 rating decision increased the rating to 10 percent, throughout. 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. Reasonable doubt regarding degree of disability must be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran asserts that he is entitled to a higher rating for his left knee disability. In August 2020, he related that he experiences knee pain, which limits his activities. The criteria for rating knee disability are found in 38 C.F.R. §4.71A. Under Code 5260 for limitation of knee flexion (the diagnostic code under which the disability has been rated), a 0 percent is assigned for extension 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. Under Code 5261 (for limitation of knee extension), a 0 percent rating is assigned for extension limited at 5 degrees; a 10 percent rating is assigned for extension limited at 10 degrees; a 20 percent rating is assigned for extension limited at 15 degrees; a 30 percent rating is assigned for extension limited at 20 degrees; a 40 percent rating is assigned for extension limited at 30 degrees; and a 50 percent rating is assigned for extension limited at 45 degrees. 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. Code 5256 pertains to ratings for ankylosis of a knee. Code 5257 provides for rating a knee based on recurrent subluxation or lateral instability. Codes 5258 and 5259 provide for ratings for dislocated or postoperative symptomatic semilunar cartilage. Code 5262 applies to ratings for impairment of the tibia and fibula. And Code 5263 applies to rating genu recurvatum. The rating criteria pertaining to Codes 5257 and 5262 were revised effective February 7, 2021. However, as those Codes are not applicable in this matter, the February 7, 2021 effective revisions do not require further discussion. 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. On October 2013 a VA examination, the Veteran reported having left knee pain. He denied having any flare-ups. On examination, left knee flexion was to 130 degrees and extension was to 0 degrees, each without objective evidence of pain. The examiner indicated that repetitive use testing did not result in any additional limitation of motion but did result in functional loss of less movement than normal. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability on repetitive use or during flare-ups. Left knee muscle strength was normal (5/5), and joint stability tests were normal. There was no recurrent patellar subluxation/dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, any other tibial and/or fibular impairment, or meniscal condition. On June 2018, VA examination, the Veteran reported having left knee arthroscopic surgery. He reported that his left knee pain had improved since the surgery but had not completely gone away. He reported several falls due to knee pain and buckling, and also reported flare-ups that resulted in much more intense pain. His reported functional loss that included inability to run or mountain bike. On examination, left knee flexion was to 140 degrees, and extension was normal to 0 degrees, with pain noted on extension. There was no objective evidence of localized tenderness or pain on palpation, and no evidence of pain with weight bearing or non-weight bearing. The examiner noted that repetitive use testing did not result in additional limitation of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner indicated that pain significantly limited functional ability with flare-ups, but further reported there was just increased pain, with no likely loss of range of motion. Left knee muscle strength was normal (5/5), and there was no muscle atrophy. The examiner indicated that the knee was not ankylosed, and that the Veteran did not have a history of recurrent subluxation or lateral instability, recurrent patellar dislocation, shin splits, stress fracture, chronic exertional compartment syndrome, any other tibial and/or fibular impairment, or meniscal condition. The examiner noted that the Veteran reported he had undergone left knee arthroscopic surgery. On October 2019 VA examination, the Veteran reported left knee pain with movement and on stopping motion. He denied having flare-ups. His reported functional loss or functional impairment included inability to ski or play basketball with his daughter. On examination, left knee flexion was to 140 degrees and extension was to 0 degrees, with no pain noted on examination or with passive range of motion testing. The examiner indicated that there was no objective evidence of localized tenderness or pain on palpation, and no evidence of pain with weight bearing or non-weight bearing. It was noted that repetitive use testing did not result in any additional loss of function or range of motion, and that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time or during flare-ups. The examiner opined that, following further review of the Veteran’s records and with consideration of subjective complaints and objective findings on examination, based on the examiner’s clinical knowledge and medical expertise, there was no rational basis for a notation of any additional loss of function or motion due to repetitive use over a period of time or during flare-ups. The Veteran had normal (5/5) left knee strength with no muscle atrophy. The examiner indicated that the Veteran did not have ankylosis, a history of recurrent subluxation or lateral instability, recurrent patellar dislocation, shin splits, stress fracture, chronic exertional compartment syndrome, any other tibial and/or fibular impairment, or meniscal condition. At the outset, the Board finds that there has been substantial compliance with the Board’s December 2018 and May 2020 remand instructions. The Veteran was afforded a VA examination and VA attempted to obtain any outstanding medical records. It was determined that medical records from the 10th Medical Group at the U.S. Air Force Academy could not be located. The current 10 percent rating under Code 5260 is assigned for knee pain (which the originating agency observed did not have to be objectively shown), and is the maximum rating available for pain without a showing of compensable functional limitations. The pertinent evidence (include reports of examinations) is summarized above. No examination during the evaluation period found limitations of flexion or extension that would be compensable under Codes 5260 or 5261 criteria (outlined above). Consequently, rating in excess of 10 percent (or a separate (other than based on pain limiting motion) under those Codes is not warranted. Likewise, no examination found ankylosis, subluxation or instability, genu recurvatum, tibia or fibula impairment, or dislocated or symptomatic post-removal semilunar cartilage. Consequently, alternate (or separate compensable) ratings under Codes 5256, 5257, 5258, 5259, 5261, 5262, or 5263 are not warranted. In that regard, the Board has noted and considered the Veteran’s report on June 2018 examination that he has had falls due to knee pain and “buckling”, and finds such report does not identify any distinct period of time for which the assignment of a separate rating (for instability) under Code 5257 could be considered. The Board has considered whether a higher disability evaluation is 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. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. 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. Here, the minimal compensable rating for the left knee is already assigned, and the analysis must turn to whether functional loss warranting a higher than 10 percent rating is reasonably shown. The June 2018 VA examiner indicated that pain significantly limited functional ability with flare-ups, but further found there was just increased pain with no likely loss of range of motion, i.e., functional limitation. October 2013 and October 2019 VA examiners indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups, and no pain (hence no additional limitation due to pain). The Veteran’s treatment records likewise do not show functional limitations warranting compensable ratings. Consequently, an increased rating based on functional limitations due these factors is not warranted. While the Veteran has been shown to experience left knee pain; however, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but of 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,” to constitute functional loss warranting an increased rating. Id. at 43; see 38 C.F.R. § 4.40. The Board has no reason to question that the Veteran’s left knee disability results in the functional limitations he has reported, such as inability to run or ride a mountain bike (on June 2018 examination) or ski or play basketball with his daughter (on October 2019 examination). Such limitations are contemplated by the criteria for the 10 percent rating that is assigned. The Board also finds that the left knee symptoms and impairment shown do not include any that are not adequately addressed by the schedular rating criteria. The disability picture presented is not shown to be exceptional (nor is it alleged to be), so as to suggest referral for consideration of an extraschedular rating under 38 C.F.R. §3.321 may be warranted. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim for a rating higher than 10 percent for the left knee disability. Accordingly, the appeal in this matter must be denied. GEORGE R. SENYK 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.