Citation Nr: 21015146 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-41 144 DATE: March 16, 2021 ORDER An initial rating in excess of 10 percent for a left knee disability is denied. FINDING OF FACT Throughout the entire period on appeal, the Veteran’s left knee disability manifested as painful noncompensable motion. CONCLUSION OF LAW Throughout the entire period on appeal, the criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1980 to November 1984. This matter was previously before the Board of Veterans’ Appeals (Board) in May 2020 when the issue was remanded for further development. Further development having been completed; the matter is once again before the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (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, etc., particularly during times when these symptoms "flare up," such 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. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. An initial rating in excess of 10 percent for a left knee disability is denied. The Veteran contends that his left knee disability is worse than that which is contemplated by his current 10 percent rating for painful noncompensable motion under DC 5260. For the reasons set forth below, a rating higher than 10 percent for the Veteran’s left knee disability is not warranted, at any time during the period on appeal. The DCs that rate on the basis of limitation of knee motion are DCs 5260 (leg, limitation of flexion of) and 5261 (leg, limitation of extension of). Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. Id. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The U. S. Court of Appeals of Veterans Claims (Veterans Court/CAVC) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, premature or excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss owing to these factors, including during prolonged or repeated use or when the symptoms are especially problematic ("flare ups"). DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (The provisions of § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, respectively, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63, 604 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998). VA's General Counsel also has held that separate ratings are permissible under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). Under DC 5257 ("Knee, other impairment of: Recurrent subluxation or lateral instability"), recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate, or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, DC 5257. In the August 2013 VA examination, the examiner noted a diagnosis of left knee sprain. The Veteran denied flare-ups. Initial range of motion (ROM) measurements were recorded. The Veteran had left knee flexion to 120 degrees with painful motion at 100 degrees. No limitation of extension or painful motion on extension was noted. ROM measurements after repetitive use testing were recorded. The left knee had post-test flexion to 120 degrees and no limitation of extension was noted. No additional limitation of ROM was noted following repetitive-use testing. However, functional loss and/or impairment was noted as less movement than normal, weakened movement, pain on movement, and atrophy of disuse. Tenderness or pain on palpation was denied. Muscle strength was noted as four out of five on both flexion and extension. Joint stability testing yielded normal results. No evidence or history of recurrent patellar subluxation or dislocation was noted. No additional conditions were noted. No meniscal conditions or surgical procedures for a meniscal condition were noted. No joint replacement procedures were noted. No other pertinent physical findings were noted. The Veteran endorsed the regular use of a left knee brace. Available imaging studies were negative for degenerative or traumatic arthritis and patellar subluxation. However, a January 2013 MRI was noted to show a bipartite patella. In terms of functional impact, the examiner noted that the Veteran’s condition affects his ability to climb stairs. In the August 2015 VA examination, the examiner noted diagnoses of left knee sprain and osteoarthritis. The Veteran reported flare-ups with swelling and more severe pain with a frequency of once per week. The Veteran reported that he has difficulty with climbing stairs, prolonged sitting and standing, and bending. Initial ROM measurements were recorded. The Veteran had left knee flexion to 110 degrees and extension from 110 degrees. Pain was noted on flexion and extension. ROM itself was noted not to contribute to a functional loss. No evidence of pain on weight bearing was noted. The examiner noted that the Veteran has moderate tenderness, which is most severe medially. Objective evidence of crepitus was noted. Observed repetitive use testing was performed. However, no additional functional loss or ROM was indicated after observed repetitive use. Repeated use over time testing was not performed. The examination was not conducted during a flare-up. No additional contributing factors to the disability were noted. Muscle strength was noted as four out of five on both flexion and extension. Muscle atrophy was denied. No evidence or history of recurrent subluxation or lateral instability was noted. In terms of recurrent effusion, the Veteran reported that he has mild swelling of the knee about once per week. Joint stability testing was performed. However, no joint instability was indicated, and the results were normal. Recurrent patellar dislocation, "shin splints,” stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment were denied. No meniscal conditions were noted. No other pertinent physical findings were noted. The constant use of a left knee brace was endorsed along with the constant use of a cane for bilateral knee and ankle conditions. An August 2014 MRI was noted to show joint degeneration. In terms of functional impact, the examiner noted that the Veteran is unable to do heavy duty work but is able to do light duty sedentary work. The examiner remarked that the Veteran has mild degenerative arthritis, which is a progression of his service-connected condition. In his January 2020 Board hearing, the Veteran stated that his left knee condition has worsened since his last VA examination. Specifically, the Veteran noted symptoms of buckling. A February 2020 private orthopedic evaluation indicates no swelling, ecchymosis or deformity of the left knee. Positive tenderness to palpation along the medial and lateral joint line was noted. Decreased ROM was indicated; however, no measurements were recorded. Muscle strength was noted as four out of five. Joint stability testing resulted in normal findings. A February 2020 VA follow-up outpatient note indicates complaints of intermittent left knee pain. Decreased ROM on flexion and extension was noted; however, no measurements were recorded. Instability and edema were specifically denied. Pursuant to the May 2020 Board remand, the Veteran was afforded a VA examination in September 2020. Diagnoses of left knee chondromalacia and myxoid degeneration of the ACL were noted. The Veteran reported daily flare-ups, which last up to a few hours, that are precipitated by prolonged standing and walking. The Veteran reported that his flare-ups are alleviated by rest. Functional loss or impairment was reported as difficulty with prolonged walking. Initial ROM measurements were recorded. The Veteran had left knee flexion to 90 degrees and extension from 90 degrees. Pain was noted on flexion and extension. ROM itself was noted not to contribute to a functional loss. Evidence of pain on weight bearing was noted. No objective evidence of localized tenderness or pain on palpation was noted. Objective evidence of crepitus was denied. Observed repetitive use testing was performed. The examiner noted that pain and lack of endurance caused additional loss of function or ROM after repetitive use, which caused limitation of flexion to 80 degrees and extension from 80 degrees. Repeated use over time testing was not performed. However, the examiner noted that pain and lack of endurance cause functional loss, which was described as limitation of flexion to 70 degrees and extension from 70 degrees. The examination was not conducted during a flare-up. However, the examiner noted that pain and lack of endurance cause functional loss, which was described as limitation of flexion to 60 degrees and extension from 60 degrees. No additional contributing factors to the disability were noted. Muscle strength was noted as five out of five on both flexion and extension. Muscle atrophy was denied. Ankylosis was denied. No evidence or history of recurrent subluxation, lateral instability, or recurrent effusion were noted. Joint stability testing was performed. However, no joint instability was indicated, and the results were normal. Recurrent patellar dislocation, "shin splints,” stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment were denied. No meniscal conditions were noted. No other pertinent physical findings were noted. The regular use of a left knee brace and walker were endorsed. A February 2014 MRI was noted to show myxoid degeneration of the ACL and low-grade chondromalacia along the medial patellar facet. In terms of functional impact, the examiner noted that there is pain, stiffness, buckling, decreased ROM, and difficulty with prolonged standing and walking. Objective evidence of pain on passive ROM and non-weight bearing was noted. The examiner remarked that the Veteran’s myxoid degeneration of the ACL and chondromalacia would explain symptoms of buckling. The Veteran was afforded another VA examination in November 2020. A diagnosis of left knee chondromalacia patella and degeneration of the ACL was noted. The Veteran reported moderate to severe daily flare-ups, which vary in duration, that are precipitated by prolonged standing and walking, kneeling, squatting, and climbing stairs. The Veteran reported that his flare-ups are alleviated by rest, medication, and elevation. Functional loss or impairment was reported as difficulty with prolonged walking, standing, kneeling, squatting, and climbing stairs. Initial ROM measurements were recorded. The Veteran had left knee flexion to 90 degrees and extension from 90 degrees. Pain was noted on flexion and extension. ROM itself was noted not to contribute to a functional loss. Evidence of pain on weight bearing was noted. No objective evidence of localized tenderness or pain on palpation was noted. Objective evidence of crepitus was denied. Observed repetitive use testing was performed. The examiner noted that pain and lack of endurance caused additional loss of function or ROM after repetitive use, which caused limitation of flexion to 80 degrees and extension from 80 degrees. Repeated use over time testing was not performed. However, the examiner noted that pain and lack of endurance cause functional loss, which was described as limitation of flexion to 70 degrees and extension from 70 degrees. The examination was not conducted during a flare-up. However, the examiner noted that pain and lack of endurance cause functional loss, which was described as limitation of flexion to 60 degrees and extension from 60 degrees. Buckling when walking was noted as an additional contributing factor to the Veteran’s disability. Muscle strength was noted as five out of five on both flexion and extension. Muscle atrophy was denied. Ankylosis was denied. No evidence or history of recurrent subluxation, lateral instability, or recurrent effusion were noted. Joint stability testing was performed. However, no joint instability was indicated, and the results were normal. Recurrent patellar dislocation, "shin splints,” stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment were denied. No meniscal conditions were noted. No other pertinent findings were noted. The regular use of a left knee brace, cane, and walker were endorsed. In terms of functional impact, the examiner noted that there is pain, stiffness, limited ROM, difficulty with prolonged standing and walking over 10 minutes, and difficulty with kneeling, bending, and climbing stairs. Objective evidence of pain on passive ROM and non-weight bearing was noted. The examiner remarked that the Veteran’s myxoid degeneration of the ACL and chondromalacia would explain symptoms of buckling. With consideration of the DeLuca factors, the left knee manifested flexion that is limited to, at worst, 60 degrees and extension that is limited to, at worst, 60 degrees. Throughout the period on appeal, the VA examiners found that the Veteran experienced pain and lack of endurance, but these factors were considered by the examiners when reporting the ROM of the knee. Thus, a higher rating is not warranted for the left knee under the factors set forth in DeLuca. A higher rating under DC 5257 is not warranted, at any time during the period on appeal, since the evidence does not show recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a, DC 5257. Although the Veteran has reported symptoms of knee buckling, during the entire period on appeal, the results of joint stability testing have consistently been normal. A higher rating under DC 5260 is not warranted, at any time during the period on appeal, since the evidence does not show limitation of flexion of the knee to 30 degrees. 38 C.F.R. § 4.71a, DC 5260. A higher rating under DC 5261 is not warranted, at any time during the period on appeal, since the evidence does not show limitation of extension of the knee to 15 degrees. 38 C.F.R. § 4.71a, DC 5261. A higher rating under DC 5258 is also not warranted. Although the Veteran reported that he has mild swelling of the knee about once per week in the August 2015 VA examination, the evidence otherwise consistently shows no joint effusion or dislocation. As there is no evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum of the left knee, at any time during the period on appeal, DCs 5256, 5262, and 5263 are not for application in this case. Based on the above, the preponderance of the evidence is against the claim and the appeal is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.