Citation Nr: 21015329 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-13 168 DATE: March 17, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right knee limitation of motion is denied. Entitlement to a separate rating of 10 percent, but no higher, for right knee instability is granted. FINDINGS OF FACT 1. The evidence indicates that the Veteran’s right knee disability was manifested by full extension, flexion that was, at worst, 90 degrees and that it has caused interference with standing or sitting, and pain contributing to additional functional loss or contributing to his disability. 2. The evidence indicates that it is at least equipoise the Veteran’s right knee disability manifests in slight weakness and lateral instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.25, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263. 2. The criteria for a rating of 10 percent, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.25, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Marine Corps from September 2000 to May 2004. In August 2017, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. In November 2017, the Board remanded the appeal for further development. In December 2018, the Board issued a decision which denied the claim on appeal. The Veteran filed a timely appeal to the Court of Appeals for Veterans’ Claims (Court). In an April 2020 Memorandum decision, the Court vacated the Board’s decision and remanded the appeal to the Board for further development. 1. A rating in excess of 10 percent for a right knee disability The Veteran contends that his right knee disability is such that a rating in excess of 10 percent is warranted. The Veteran currently has a 10 percent disability rating under 38 C.F.R. § 4.71 Diagnostic Code 5261. Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, a 10 percent rating is warranted when flexion is limited to 45 degrees. 38 C.F.R. § 4.71a. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion of the leg is limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A maximum rating of 50 percent is warranted for extension limited to 45 degrees. Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5262, a 10 percent rating is warranted for malunion impairment of tibia and fibula, with slight knee or ankle disability. A 20 percent rating is warranted for malunion impairment of tibia and fibula, with moderate knee or ankle disability. A 30 percent rating is warranted for malunion impairment of tibia and fibula, with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of tibia and fibula, with loose motion, requiring a brace. Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes 5257, 5258, 5259, 5260, 5261 and 5262) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, semilunar cartilage dislocation, semilunar cartilage removal, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5263. As an initial matter, the Board notes that the evidence in this case does not reflect and the Veteran does not allege that he has semilunar cartilage dislocation or removal, genu recurvatum, or ankylosis. As such, those diagnostic codes are not for application. Turning to the evidence of record, in a September 2012 VA examination, the examiner reported initial right knee range of motion as follows: flexion at 0 to 125 degrees with objective evidence of painful motion beginning at 125 degrees, and no limitation of extension with no evidence of painful motion. The examiner reported that repetitive use testing was performed, stating that post-test range of motion was as follows: flexion at 0 to 125 degrees and no limitation of extension. The examiner endorsed the statement that the Veteran has additional limitation in range of motion of the knee and lower leg following repetitive testing. The examiner also stated that the Veteran had functional loss or impairment of the knee, describing the contributing factors of the disability as pain on movement and swelling. The examiner noted tenderness or pain on palpitation for joint line or soft tissues of the knee. The examiner stated that there was normal muscle strength and normal anterior, posterior, and medial lateral stability. The examiner further noted that there was no evidence or history of recurrent patella subluxation/dislocation. The examiner stated that imaging studies indicated no evidence of degenerative or traumatic arthritis or patellar subluxation. In an April 2014 VA examination, the examiner extracted range of motion results from the September 2012 examination. The examiner explained that the range of motion testing on the day of examination was not helpful for range of motion assessment due to the Veteran’s active resistance to flexion examination due to either anxiety or pain. The examiner noted that the Veteran actively resisted at 105 degrees of flexion for both knees, which is highly unusual for patellofemoral syndrome. The examiner further noted that three repeats all resulted in this active resistance, and since the VHA orthopedics care note did not include 3 repetitions, the examiner was unable to comment on repetitive usage. In an April 2015 VA medical record, the Veteran reported for complaint of knees to include pain, and stiffness in the right greater than the left knee. The examiner noted that the Veteran reported associated symptoms of stiffness, giving way, and frequent popping. In an August 2017 Board hearing, the Veteran stated that his right knee locked up and gives out during various activities. He also reported inflammation, pain issues and weakness. The Veteran stated that he was precluded from standing, walking and kneeling. He also stated that he had pain while sitting, which caused him to fidget. In a December 2017 VA examination, the Veteran reported chronic knee pain. He reported sensation of clicks and pops, and nails or needles inside of his knees with walking stairs, squatting, and lifting. He reported that both knees were puffy and felt tight. The Veteran further reported flare-ups that cause limited motion due to pain. The examiner reported initial right knee range of motion as follows: flexion at 0 to 110 degrees and extension at 110 to 0 degrees. The examiner stated that range of motion itself contribute to functional loss in that the Veteran had limited motion by pain. The examiner went on to report that pain was noted on examination and caused functional loss. The examiner stated that there was pain with weight bearing and non-weight bearing and with passive motion bilaterally. The examiner also noted objective evidence of pain on palpation of the joint or associated soft tissue, which was described as all patellar structures mildly painful on palpation. The examiner reported no objective evidence of crepitus. The examiner stated that there was no additional functional loss or range of motion after repetitive testing. The examiner noted that the Veteran was not examined immediately after repetitive use over time, but the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. The examiner stated that pain significantly limited functional ability with flare-ups, describing flexion at 0 to 90 degrees and extension at 90 to 0 degrees during flare-ups. The examiner stated that there was no evidence of loss of muscle strength or muscle atrophy. The examiner also noted that there was no evidence of ankylosis, recurrent subluxation, lateral instability, or recurrent effusion. The examiner stated that there was normal anterior, posterior, and medial lateral stability. The examiner stated that the Veteran wore a brace as an assistive device with regular frequency. The examiner stated that the Veteran’s right knee condition had functional impact on standing, walking, lifting, and carrying, all expected to cause flares. In a September 2018 VA examination, the Veteran reported left leg pain and numbness. The Veteran stated that his leg gives out after prolonged sitting or standing. The examiner found no symptoms attributable to any peripheral nerve condition of the right knee. The examiner noted active movement against some resistance during right knee extension. The examiner remarked that the right knee weakness is due to right knee condition and not due to a right sided radiculopathy. In a July 2019 examination, the examiner diagnosed the Veteran with chronic shin splints. The examiner reported initial right knee range of motion as follows: flexion at 0 to 110 degrees and extension at 110 to 0 degrees. The examiner noted pain on examination of flexion that causes functional loss. The examiner also observed evidence of pain with weight bearing and objective evidence of localized tenderness or pain on palpation of the tibial shaft. The examiner stated that that there was no additional functional loss or range of motion after repetitive testing. The examiner noted that the Veteran was not examined immediately after repetitive use over time, and examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner also stated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner further noted that the Veteran was examined during a flare-up, and pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups. The examiner noted that the Veteran had active movement against some resistance upon muscle strength testing of the right knee flexion and extension. The examiner noted that there was no evidence of ankylosis, recurrent subluxation, lateral instability, or recurrent effusion. The examiner noted that the Veteran’s shin splints did not affect range of motion of the knee or the ankle. The examiner remarked that the Veteran’s bilateral shin condition is mild to moderate in severity. After review of the evidence, the Board finds that a 10 percent rating for right knee limitation of flexion is appropriate. Throughout the appeals period, the Veteran’s right knee range of motion was, at worst, flexion at 0 to 90 degrees and full extension. Thus, the Veteran’ s right knee disability more closely approximates to a 10 percent rating. A rating of 20 percent for a right knee disability is not warranted. Throughout the appeals period, even when considering functional impairment on repeated use over time and with flare-ups, the Veteran did not have flexion limited to 30 degrees, nor did he have an extension limited to 15 degrees, ankylosis of the knee, or cartilage dislocation or removal. Therefore, the Veteran’s right knee limitation of motion does not approximate to a 20 percent rating. Regarding whether a separate rating for lateral instability or recurrent subluxation is warranted for the right knee, the Board finds that an initial separate rating under Diagnostic Code 5257 is warranted as the evidence shows that the Veteran has slight knee instability based on his lay statements contained in his April 2015 VA medical record and August 2017 Board hearing testimony. See English v. Wilkie, 30 Vet. App. 347. 35253 (2018) (finding that Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). The Veteran has stated that he right knee has stiffness and that his right knee gives way. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that a separate rating of 10 percent, but no higher, for slight instability of the knee is warranted. In reaching this conclusion, any reasonable doubt was resolved in the Veteran’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. However, a higher, 20 percent rating for moderate recurrent subluxation or lateral instability is not warranted because at no time has the Veteran’s subluxation and instability been described or approximated by a medical examiner as moderate in nature, and it has also not been asserted by the Veteran. The Board notes that, by an August 2019 rating decision, the Veteran was granted a separate rating of 10 percent for right shin splints under Diagnostic Code 5299-5262. The evidence indicates that the Veteran’s shin disability is mild to moderate in severity and did not affect range of motion of the knee or the ankle. The evidence does not indicate tibia impairment with moderate knee or ankle disability. Therefore, a higher rating for shin splints is not warranted. The provisions of 38 C.F.R. § 4.40 and § 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown and Mitchell v. Shinseki were considered. However, the record of evidence does not indicate marked limitation of motion, even when considering these factors. Therefore, higher ratings are not warranted. In reaching this decision, the Board has considered the Veteran’s lay statements in support of his claim. The Board notes that the Veteran is competent to report observations about the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, and 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings assigned. To the extent he argues his symptomatology is more severe, the Veteran’s statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ford 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.