Citation Nr: 21011678 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-29 169 DATE: March 2, 2021 ORDER A 20 percent rating for right knee degenerative arthritis prior to October 10, 2019 is granted. The claim for higher rating than 40 percent for right knee degenerative arthritis since October 10, 2019 is denied. A 20 percent rating for residuals of a fracture of the left tibial condyle, status post left knee ligament tear, prior to October 10, 2019 is granted. The claim for higher rating than 40 percent for residuals of a fracture of the left tibial condyle, status post left knee ligament tear, since October 10, 2019 is denied. FINDINGS OF FACT 1. Prior to October 10, 2019, there was established that both right and left knee conditions demonstrated limited motion from 15 to 75 degrees, when further considering the impact of functional loss due to pain on use, weakness, and other factors. 2. Since October 10, 2019, bilateral knee joint mobility was measured at the level of 30 to 110 degrees. CONCLUSIONS OF LAW 1. The criteria are met for a 20 percent rating for right knee degenerative arthritis prior to October 10, 2019. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2020). 2. The criteria are not met for a higher rating than 40 percent for right knee degenerative arthritis since October 10, 2019. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2020). 3. The criteria are met for a 20 percent rating for residuals of a fracture of the left tibial condyle, status post left knee ligament tear, prior to October 10, 2019. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2020). 4. The criteria are not met for a higher rating than 40 percent for residuals of a fracture of the left tibial condyle, status post left knee ligament tear, since October 10, 2019. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Army from June 1974 to August 1975, and from October 1975 to October 1979. Previously, in March 2019, the Board remanded this case for another VA examination, the purpose to address the current symptomatology and degree of the service-connected bilateral knee conditions, as to observed joint region limitation of motion. Following this, a September 2020 VA Regional Office (RO) rating decision increased from 10 to 40 percent the evaluation for both right and left service-connected knee disorders, effective from October 10, 2019. The claims for any still higher schedular ratings remain for consideration on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). There was further awarded at one point a separate rating for service-connected left knee disorder, for left knee instability as rated under Diagnostic Code 5257 (recurrent subluxation and/or lateral instability) and that aspect of service-connected disability is not part of the current appeal which pertains to joint mobility due to orthopedic condition. 1. The claim for higher evaluation for right knee degenerative arthritis, rated at 10 percent prior to October 10, 2019 and 40 percent since then. 2. The claim for higher evaluation for residuals of a fracture of the left tibial condyle, status post left knee ligament tear, rated at 10 percent prior to October 10, 2019 and 40 percent since then. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1 For purpose of evaluating service-connected orthopedic disabilities, when a musculoskeletal disability is evaluated based upon range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, including as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id.; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). It has been held further by VA caselaw that the provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Under Diagnostic Code 5260, for limitation of leg flexion, a 0 percent rating applies where flexion is limited to 60 degrees. A 10 percent rating applies for flexion limited to 45 degrees. A 20 percent rating applies for flexion limited to 30 degrees. A 30 percent rating applies for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, for limitation of leg extension, a 0 percent rating applies where extension is limited to 5 degrees. A 10 percent rating applies for extension limited to 10 degrees. A 20 percent rating applies for extension limited to 15 degrees. A 30 percent rating applies for extension limited to 20 degrees. A 40 percent rating applies for extension limited to 30 degrees. A 50 percent rating applies for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. VA’s Office of General Counsel in a precedent opinion determined that separate disability ratings may be assigned for limitation of knee flexion and of knee extension without violating the rule against pyramiding, 38 C.F.R. § 4.14, regardless of whether the limited motions are from the same or different causes. VAOPGCPREC 9-04 (September 17, 2004), 69 Fed. Reg. 59,990 (2004). Recently, there was also a regulatory revision made to the VA rating criteria for evaluating musculoskeletal disorders at 38 C.F.R. § 4.71a, effective February 7, 2021. That amendment did not however affect the specific rating provisions addressed in this case for limitation of motion affecting the knee region. On review of the evidence during the rating time period since 2011, the Board finds that the disability compensation scheme for bilateral knee disorders warrants adjustment to reflect a greater degree of severity of condition, prior to 2019. The current level of compensation at 40 percent since October 10, 2019 would remain in effect. The evidence for rating purposes for this claim primarily consists of two VA examination reports, the first from back in January 2012, and providing findings which at that time did substantiate a higher rating. The January 2012 examination report reflects range of motion measurement for the bilateral knees at 0 to 90 degrees, however, then further limited to 15 to 75 degrees when factoring painful motion. The latter figure accounts for functional loss due to pain, weakness, instability, and other factors. See Deluca v. Brown, supra. See also 38 C.F.R. §§ 4.40, 4.45, 4.59. Since Diagnostic Code 5261 indicates a 20 percent rating applies for extension limited to 15 degrees, that then warrants the higher 20 percent rating. There is no indication of contrary or less pronounced findings to consider, particularly because the Veteran did not have another examination until more than 7 years later. Accordingly, a higher 20 percent rating should apply for the rating timeframe up until October 10, 2019. For the additional remaining timeframe relevant to this claim and that being from October 10, 2019 onwards, the increased level of symptomatology as pertaining to limitation of motion is already accurately accounted for by the existing VA rating scheme. On VA examination October 2019, the range of motion findings obtained consisted of 30 to 110 degrees, bilaterally, and which was not shown to have been worsened when factoring in any particular form of functional loss or results of any repetitive motion study. In accordance with Diagnostic Code 5261, a 40 percent rating applies for extension limited to 30 degrees. Applying this rating standard and absent any indication or outside evidence that is contrary, the condition has been accurately evaluated from October 10, 2019 onwards. For these reasons, the preponderance of the evidence warrants the partial grant of the claim on appeal. VA’s benefit-of-the-doubt doctrine applies to the extent indicated in furtherance of this outcome. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.