Citation Nr: 21015832 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-14 537 DATE: March 18, 2021 ORDER Entitlement to a rating in excess of 40 percent for right knee limited extension is denied. Entitlement to a rating in excess of 10 percent for left knee limited extension is denied. FINDINGS OF FACT 1. Right knee limited extension was manifested by pain, with extension limited to 30 degrees at worst. 2. Left knee limited extension was manifested by pain, with extension limited to 10 degrees at worst. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for right knee limited extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 2. The criteria for a rating in excess of 10 percent for left knee limited extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to June 1992. This case was previously before the Board in September 2019, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The Veteran’s knees are each rated under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension of the leg. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension 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 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). The Board notes that the Veteran is in receipt of separate ratings under DC 5257 for instability in each knee. These ratings were adjudicated in the September 2019 Board decision and are not before the Board at this time. 1. Entitlement to a rating in excess of 40 percent for right knee limited extension A September 2010 treatment record notes that the Veteran had marked bilateral bowleg deformity and that his extension was limited to 5 degrees and flexion to 115 degrees. At a June 2011 VA examination for the right knee, the Veteran reported constant sharp, aching, throbbing pain in the right knee with flare-ups 6 to 7 times per day. He stated that he could walk for 50 yards. Upon examination, the Veteran exhibited extension to 0 degrees and flexion to 120 degrees. The examiner noted no increased loss of function after repetitive testing. Instability testing was negative. The Veteran received another VA examination in November 2011. He reported pain and instability. Upon examination, he exhibited flexion to 110 degrees and extension to 10 degrees in the right knee. After repetitive testing, less movement than normal, weakened movement, pain on movement, swelling, and deformity were noted. Muscle strength testing was normal. Instability testing revealed medial-lateral instability. The Veteran reported frequent episodes of locking and joint pain. In March 2019 the Veteran received another VA examination. He reported constant pain and swelling, with sharp increases in both pain and swelling during flare-ups. Upon examination he exhibited flexion to 85 degrees and extension to 30 degrees in the right knee. The examiner noted evidence of pain with weight bearing, crepitus, and localized tenderness. Pain and lack of mobility precluded repetitive testing. The examiner indicated that weakness caused additional limitation of motion during flare-ups but stated that the range of motion of variable based on pain level and cannot be used to accurately describe the level of functional loss. Therefore, no estimate for range of motion during flare-ups was provided. Muscle strength testing was 4/5 for both flexion and extension. There was no muscle atrophy or ankylosis. Instability testing was not performed, with the justification that the Veteran did not complain of instability, and the condition was not suspicious for such. Upon remand, the Veteran underwent another VA examination in February 2020. He reported that he had pain in his knees when he has to walk far. He described flare-ups that consisted of needing to elevate his legs for an hour or so after getting home from work. Upon examination, he exhibited flexion to 90 degrees and extension to 0 degrees. No additional loss of motion was noted after repetitive testing. The examiner indicated that functional ability was not significantly limited during flare-ups and provided an estimate of flexion to 90 degrees and extension to 0 degrees. Muscle strength testing was normal. No muscle atrophy or ankylosis was present. Joint stability testing was performed, and all results were normal. Based on the evidence of record, the Board finds that a rating in excess of 40 percent for limitation of extension of the right knee is not warranted. Extension must be limited to 45 degrees for a 50 percent rating. That has not been shown here. The Veteran’s extension was limited to 30 degrees at worst. While flare-ups were reported, the Veteran stated that they caused increased pain and required him to rest for brief periods. There is no indication that flare-ups caused further limitation of extension to 45 degrees or worse. Further, the February 2020 examiner stated that extension was estimated to be to 0 degrees even during flare-ups. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Veteran’s flexion during this period was not limited to 60 degrees as required for a rating under DC 5260. While residual pain and swelling due to meniscectomy were reported, the Veteran is already in receipt of a separate rating under DC 5257 for these symptoms. There was no meniscal dislocation to warrant a rating under DC 5258. Although the Veteran reported locking and joint pain at the November 2011 examination, this is the only point during the entire period where such was noted. All other examinations found no such symptoms. Therefore, the Board finds that a separate rating under DC 5259 is not warranted. Moreover, there is no evidence of knee ankylosis, malunion of the tibia or fibula or genu recurvatum to support higher or separate ratings under DC 5256, 5262 or 5263. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for right knee, limited extension. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a rating in excess of 10 percent for left knee limited extension The Veteran received another VA examination in November 2011. He reported pain and instability. Upon examination, he exhibited flexion to 115 degrees and extension to 10 degrees in the left knee. After repetitive testing, less movement than normal, weakened movement, pain on movement, swelling, and deformity were noted. Muscle strength testing was normal. Instability testing revealed medial-lateral instability. The Veteran reported frequent episodes of locking and joint pain. In March 2019 the Veteran received another VA examination. He reported constant pain and swelling, with sharp increases in both pain and swelling during flare-ups. Upon examination he exhibited flexion to 100 degrees and extension to 0 degrees in the left knee. The examiner noted evidence of pain with weight bearing, crepitus, and localized tenderness. Pain and lack of mobility precluded repetitive testing. The examiner indicated that weakness caused additional limitation of motion during flare-ups but stated that the range of motion of variable based on pain level and cannot be used to accurately describe the level of functional loss. Therefore, no estimate for range of motion during flare-ups was provided. Muscle strength testing was 4/5 for both flexion and extension. There was no muscle atrophy or ankylosis. Instability testing was not performed, with the justification that the Veteran did not complain of instability, and the condition was not suspicious for such. Upon remand, the Veteran underwent another VA examination in February 2020. He reported that he had pain in his knees when he has to walk far. He described flare-ups that consisted of needing to elevate his legs for an hour or so after getting home from work. Upon examination, he exhibited flexion to 90 degrees and extension to 0 degrees. No additional loss of motion was noted after repetitive testing. The examiner indicated that functional ability was not significantly limited during flare-ups and provided an estimate of flexion to 90 degrees and extension to 0 degrees. Muscle strength testing was normal. No muscle atrophy or ankylosis was present. Joint stability testing was performed, and all results were normal. Based on the evidence of record, the Board finds that a rating in excess of 10 percent for limitation of extension of the left knee is not warranted. Extension must be limited to 15 degrees for a 20 percent rating. That has not been shown here. The Veteran’s extension was limited to 10 degrees at worst. While flare-ups were reported, the Veteran stated that they caused increased pain and required him to rest for brief periods. There is no indication that flare-ups caused further limitation of extension to 15 degrees or more. Further, the February 2020 examiner stated that extension was estimated to be to 0 degrees even during flare-ups. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Veteran’s flexion during this period was not limited to 60 degrees as required for a rating under DC 5260. While residual pain and swelling due to meniscectomy were reported, the Veteran is already in receipt of a separate rating under DC 5257 for these symptoms. There was no meniscal dislocation to warrant a rating under DC 5258. Although the Veteran reported locking and joint pain at the November 2011 examination, this is the only point during the entire period where such was noted. All other examinations found no such symptoms. Therefore, the Board finds that a separate rating under DC 5259 is not warranted. Moreover, there is no evidence of knee ankylosis, malunion of the tibia or fibula or genu recurvatum to support higher or separate ratings under DC 5256, 5262 or 5263. Finally, the Board notes that the Veteran had a total knee replacement for the left knee in 2014. The Veteran’s combined rating of 20 percent under DC 5257 and 10 percent under DC 5261 combine to the minimum 30 percent rating that is required after total knee replacement surgery under DC 5055. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for left knee, limited extension. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.