Citation Nr: 21014742 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 08-18 732 DATE: March 15, 2021 ORDER Prior to June 28, 2016, entitlement to a disability rating in excess of 10 percent for chondromalacia of the left knee is denied. Since August 1, 2016, entitlement to a disability rating in excess of 20 percent for chondromalacia of the left knee is denied. FINDINGS OF FACT 1. Prior to June 28, 2016, the Veteran’s left knee disability has been manifested by flexion limited to, at worst, 135 degrees and pain. 2. Since August 1, 2016, the Veteran’s left knee disability has been manifested by dislocated semilunar cartilage with locking and pain; flexion was limited to, at worst, 100 degrees with pain. CONCLUSIONS OF LAW 1. Prior to June 28, 2016, the criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257- 5263. 2. Since August 1, 2016, the criteria for a rating in excess of 20 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257- 5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to July 1986, and from February 1987 to December 1999. This appeal before the Board of Veterans’ Appeals (Board) arose from a February 2006 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, Veteran testified during a Board videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is associated with the record. In correspondence dated in January 2020, the Veteran was offered the opportunity to testify at another hearing; however, he did not respond within 30 days. Therefore, the Board will continue review of the appeal. In September 2015, February 2018, and February 2020, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. See September 2020 supplemental statement of the case. 1. Prior to June 28, 2016, entitlement to a disability rating in excess of 10 percent for chondromalacia of the left knee is denied. 2. Since August 1, 2016, entitlement to a disability rating in excess of 20 percent for chondromalacia of the left knee is denied The Veteran seeks a disability rating in excess of 10 percent for the left knee disability for the period prior to June 28, 2016, and in excess of 20 percent for the period since August 1, 2016. VA outpatient treatment records reflect the Veteran’s reports of left knee pain. In September 2004 and July 2008, the Veteran ambulated with a non-antalgic gait. The Veteran had left knee range of motion from 0 to 135 degrees. There was no effusion, no joint line tenderness, no laxity, and no guarding on passive or active range of motion. In January 2012, the Veteran had full range of motion of the left knee with good stability in both planes of motion. A magnetic resonance imaging (MRI) report showed mild degenerative changes of the left knee. In September 2015, the Veteran reported giving way and locking up with intermittent pain and swelling. In March 2016, the Veteran was fitted with bilateral knee braces. At an October 2005 VA examination, the Veteran reported giving way, pain, and weakness. He endorsed flare-ups every two to three weeks which result in the Veteran having to stop what he is doing. Range of motion testing of the left knee revealed 10 degrees of extension and 140 degrees of flexion. There was no ankylosis of the knee. The examiner noted pain, clicks or snaps, and grinding of the left knee. There was no instability of the left knee and no meniscal abnormality. The examiner estimated that the Veteran would not have any additional loss of motion during flare-ups or with repetitive use from pain, fatigue, weakness, or lack of endurance. The examiner assessed the Veteran with bilateral knee arthralgia with no evidence of arthritic changes or degenerative process. Associated with the claims file is an operative report from Foundation Surgical Hospital of El Paso dated in June 2016. The Veteran underwent a left knee arthroscopy with debridement of a lateral meniscal tear. At an August 2016 VA examination, the Veteran reported daily pain with episodes of instability which he described as shaking and wobbliness with walking. The Veteran denied flare-ups of the left knee. Range of motion testing revealed flexion to 120 degrees and extension to 0 degrees. There was pain with range of motion testing, with weight bearing, and tenderness around the knee joint. The Veteran was able to perform three repetitions with flexion to 110 degrees and extension to 0 degrees with pain. The examiner indicated that the Veteran ambulates at a slower pace due to disturbance of locomotion. Muscle strength testing was normal and there was no ankylosis of the knee. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal with no instability present. The Veteran ambulated with the regular use of a brace. The examiner noted that the Veteran had a meniscectomy which resulted in an antalgic gait on ambulation and ambulation at a slower pace. The examiner diagnosed the Veteran with left knee meniscal tear and chondromalacia. At an August 2020 VA examination, the Veteran reported flare-ups with swelling at least two to three times a week which made it difficult to stand up, walk, or exercise. The Veteran also endorsed locking of the knee unrelated to flare-ups. He noted that his left knee resulted in problems with sitting, standing, walking, and putting on his shoes and socks. Range of motion testing of the left knee revealed flexion to 100 degrees and extension to 0 degrees with pain. The examiner noted that there was objective evidence of left knee pain, crepitus, and evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions. The examiner estimated that pain would not change the Veteran’s ranges of motion with repetitive use over time or with flare-ups. The examiner noted that the Veteran’s left knee disability also resulted in swelling, disturbance of locomotion, and interference with sitting and standing. Muscle strength testing was normal and there was no ankylosis of the knee. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal with no instability present. The examiner noted that the Veteran had a meniscal tear with frequent episodes of joint locking and frequent episodes of joint pain. The Veteran ambulated with the regular use of a brace. The examiner noted evidence of pain when the left knee was used in non-weight bearing. Passive range of motion testing was the same as active range of motion. The examiner diagnosed left knee chondromalacia, left knee meniscal tear, and left knee degenerative arthritis. As an initial matter the Board notes that the Veteran was awarded a temporary total (100 percent) rating for his left knee disability pursuant to 38 C.F.R. § 4.30 for the period from June 28, 2016, to July 31, 2016, based on a period of convalescence following a surgical procedure on his left knee. After a review of all the lay and medical evidence of record, the Board finds that a disability rating in excess of 10 percent for the Veteran’s left knee disability is not warranted for the period prior to June 28, 2016. For the relevant period prior to June 28, 2016, the Veteran was granted a 10 percent rating pursuant to Diagnostic 5257, which pertains to recurrent subluxation or lateral instability, neither of which is shown upon examination. As such a higher rating is not warranted for either disability pursuant to Diagnostic Code 5257. 38 C.F.R. § 4.71a. Additionally, the evidence of record shows that the Veteran did not have limitation of flexion to 45 degrees or less or limitation of extension to 10 degrees or more. In fact, flexion is limited to, at worst, 135 degrees and the Veteran had normal extension. In terms of functional loss, although the Veteran has reported left knee pain, such pain is not shown to have been productive of symptoms that meet or are analogous to the criteria for a compensable rating for limitation of motion. Therefore, a separate compensable rating for limitation of left knee flexion or limitation of left knee extension is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Furthermore, the additional limitation that the Veteran experiences due to pain, weakness, fatigability, lack of endurance, or incoordination on repetition was accounted for by the VA examiners when determining the Veteran’s range of motion and was further considered by the Board. 38 C.F.R. § 4.40, 4.45. Thus, the preponderance of the evidence is against a finding that the Veteran had more limitation of motion in his left knee than that found at his VA examinations. With consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 10 percent for functional impairment of the left knee disability. Consideration has been given to assigning a higher rating under other diagnostic codes that pertain to the knee. However, the evidence shows that the Veteran does not have ankylosis of the knee; a disability affecting the cartilage of the knee; tibia or fibula impairment in either leg; or genu recurvatum. As such, a higher or separate rating is not warranted for the knee under another diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263. After a review of all the lay and medical evidence of record, the Board finds that a disability rating in excess of 20 percent for the Veteran’s left knee disability is not warranted for the period prior since August 1, 2016. The Board notes that for the relevant period since August 1, 2016, the Veteran was granted a 20 percent rating pursuant to Diagnostic Codes 5003-5258, which pertain to degenerative arthritis and dislocated semilunar cartilage. 38 C.F.R. § 4.71a. A 20 percent rating is the highest and only possible rating pursuant to Diagnostic Code 5258. 38 C.F.R. § 4.71a. As such a higher rating is not warranted under this diagnostic code. Additionally, the evidence of record shows that the Veteran did not have limitation of flexion to 45 degrees or less or limitation of extension to 10 degrees or more. In fact, flexion is limited to, at worst, 100 degrees and the Veteran had normal extension. In terms of functional loss, although the Veteran has reported left knee pain, such pain is not productive of symptoms that meet or are analogous to the criteria for a higher rating for limitation of motion. Therefore, a separate compensable rating for limitation of left knee flexion or limitation of left knee extension is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261). Furthermore, the additional limitation that the Veteran experiences due to pain, weakness, fatigability, lack of endurance, or incoordination on repetition was accounted for by the VA examiners when determining the Veteran’s range of motion and was further considered by the Board. 38 C.F.R. § 4.40, 4.45. Thus, the preponderance of the evidence is against a finding that the Veteran had more limitation of motion in his left knee than that found at his VA examinations. With consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 20 percent for functional impairment of the left knee disability. Consideration has been given to assigning a higher rating under other diagnostic codes that pertain to the knee. However, the evidence shows that the Veteran does not have ankylosis of the knee; a disability affecting the cartilage of the knee; tibia or fibula impairment in either leg; or genu recurvatum. As such, a higher or separate rating is not warranted for the knee under another diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263. The Veteran’s belief that he is entitled to higher ratings for his left knee disability is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran’s general belief that he is entitled to higher ratings. Accordingly, the Board finds that a preponderance of the evidence is against the claim and entitlement to a rating in excess of 10 percent prior to June 28, 2016, and in excess of 20 percent since August 1, 2016, for the left knee disability is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.