Citation Nr: 21022767 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-30 294 DATE: April 19, 2021 ORDER Entitlement to a rating in excess of 30 percent for traumatic arthritis of the left knee is denied. FINDING OF FACT The Veteran’s left knee disability is manifested by complaints of pain and limited range of motion. Flexion was better than 60 degrees and extension has been greater than 20 degrees. CONCLUSION OF LAW The criteria for a disability rating more than 30 percent for left knee disability are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2018).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to August 1998. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board remanded this case for further development. The June 2020 remand required that the VA schedule the Veteran for a more detailed examination. The Board’s remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 30 percent for traumatic arthritis of the left knee Pertinent Legal Criteria 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2018). The Veteran’s entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When a disability has undergone varying and distinct levels of severity during the appeal, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Left Knee VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2018). Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The Veteran has been assigned a 30 percent evaluation under diagnostic code 5261. The evaluation contemplates pain on motion. In addition, it is consistent with limitation of extension to 20 degrees. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of extension to 30 degrees. Separate evaluations may be assigned for compensable limitation of flexion, instability, subluxation, or cartilage impairment. VA General Counsel has held that separate evaluations under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990 (September 17, 2004). VA General Counsel has held that a Veteran who has both arthritis and instability of a knee may be granted separate evaluations under Diagnostic Codes 5003 and 5257, respectively, without violating the rule against pyramiding in 38 C.F.R. § 4.14. However, any such separate rating must be based on additional disabling symptomatology. Additionally, under 38 C.F.R. § 4.59 (2018), it is the intention of the rating schedule to recognize actually painful joints as entitled to at least the minimum compensable rating for the joint. This applies even if arthritis is not shown. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board additionally notes that there is no evidence of ankylosis of either knee, frequent locking of the knee, disability caused by cartilage removal, or impairment of the tibia and fibula. Thus, Diagnostic Codes 5256, 5258, 5259, and 5262 do not apply in this case. The Veteran was provided a VA examination in November 2020. She reported pain in both knees resulting in limitations walking and running for prolonged periods of time. She reported flare-ups and the examiner reported functional loss manifested by limitations with walking. Range of motion (ROM) testing revealed left knee flexion to 120 degrees and extension to 0 degrees. There was objective evidence of pain that caused functional loss which the examiner noted as pain increased with prolonged walking, standing and driving. The examiner also noted inability of Veteran to kneel or squat. The VA examiner noted that there was evidence of pain with weight bearing. It was further noted that Veteran was experiencing intermittent locking of the knees due to her knee issues. Repetitive use ROM testing result in left knee limitation of extension to 0 degrees and left knee flexion to 110. There was objective evidence of pain on passive range of motion testing of the left knee as well as objective evidence of pain on non-weight bearing testing of the left knee. Flare-up ROM testing results in the left knee show limitation of extension to 0 and limitation to flexion to 110 degrees. There was no objective evidence of ankylosis in the knee. Pursuant to Diagnostic Code 5260, when flexion in the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. When flexion limited to 30 degrees a 20 percent rating is warranted. When flexion is limited to 15 degrees, a 30 percent maximum rating is warranted. As detailed above, the VA examination report documented at worst flexion limited to 110 degrees. With regard to flexion of the knee the appellant does not have a compensable degree of limitation of flexion. Rather, all testing disclosed that flexion was better than 60 degrees. As such, a separate rating for limitiaton of flexion is not warranted. Pursuant to Diagnostic Code 5261, when extension is limited to 5 degrees a noncompensable evaluation is warranted, a 10 percent evaluation with limitation to 10 degrees, a 20 percent evaluation with limitation to 15 degrees, a 30 percent evaluation with limitation to 20 degrees, a 40 percent evaluation for limitation to 30 degrees, and a 50 percent evaluation for limitation to 45 degrees. As detailed above, the recent VA examination documented extension to 0 degrees. Nothing in this record suggests that extension is functionally limited more than 20 degrees. In reaching the determination, the Board has considered the relevant history. The 2016 examination disclosed a history of a partial knee replacement. The range of motion in 2016 was from 20 to 125 degrees (consistent with the 30 percent evaluation for limitation of extension). However, the evidence after the 2016 examination tends to establish improvement. Regardless, no credible evidence establishes extension limited beyond 20 degrees or a compensable degree of limitiaton of flexion. Furthermore, there is no credible proof of compensable instability or subluxation. Rather, testing disclosed no instability, no atrophy and strength measured as 5/5. We have no doubt that the Veteran has difficulty with use and pain on motion. However, the current evaluation contemplates pain on motion and the actual degree of functional impairment.   Accordingly, an increased disability rating is not warranted as to the Veteran’s left knee during any period under consideration. The preponderance of the evidence is against the claim and there is no doubt to be resolved. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Konieczny, Adam 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.