Citation Nr: 21025707 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-42 945 DATE: April 28, 2021 ORDER An initial rating in excess of 10 percent for a left knee strain, characterized by limitation of flexion, is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s left knee strain manifested in flexion greater than 30 degrees and extension less than 15 degrees, and, throughout the period on appeal, it did not manifest in ankylosis, or arthritis with involvement of two or more major joints or two or more major joint groups. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. § 1155 (West 2014), 38 C.F.R. § 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1984 to October 1988.ate This matter returns to the Board of Veterans’ Appeals (Board) following the issuance of an April 2019 Board remand which directed the Regional Office (RO) to complete additional development. The Board notes that the Veteran was awarded an additional 10 percent rating for his left knee disability under Diagnostic Code 5257 (addressing instability) in a January 2021 RO rating decision. The January 2021 rating decision constitutes an initial decision. Therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. As such, a review of the Veteran’s service-connected left knee instability will be conducted at a later date under the AMA system. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran's knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). However, as was discussed above, only range of motion will be considered here. Moreover, a separate rating could also be warranted under 38 C.F.R. § 4.59, based on X-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. 1. An initial rating in excess of 10 percent for a left knee strain, characterized by limitation of flexion The Veteran has maintained that his left knee strain, characterized by limitation of motion, is worse than the rating assigned contemplates. In this case, the Veteran has been assigned a 10 percent rating, for his left knee strain, based upon limitation of motion (addressing flexion) under 38 C.F.R. § 4.71a, DC 5260. To warrant a rating in excess of 10 percent based solely on limitation of motion, the evidence must show: • Limitation of flexion to 30 degrees (20 percent under DC 5260); • Limitation of extension to 15 degrees (20 percent under DC 5261); • Limitation of flexion to 45 degrees and limitation of extension to 10 degrees (two separate 10 percent ratings under DCs 5260 and 5261, respectively); • Favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256); or, • X-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations (20 percent under DC 5003). See 38 C.F.R. § 4.71a. The Board notes that the Veteran has not alleged, nor has the evidence indicated the presence of a knee disability related to the tibia or fibula, genu recurvatum, or ankylosis, and therefore consideration of an additional ratings under DCs 5256, 5262, and 5263 are not warranted and will not be discussed in this decision. Additionally, consideration of the rating assigned for the Veteran’s left knee instability will not be undertaken for the reasons explained above in the introduction. After a review of the evidence, the Board finds that a rating in excess of 10 percent for a left knee disability is not warranted. The Veteran was provided with examinations in October 2015, March 2019, and January 2021 to evaluate the severity of his left knee disability. At the October 2015 examination the Veteran reported constant throbbing pain that becomes sharp with bending. He indicated that he treated his pain with over the counter medication and reported the incidence of flare-ups. He also noted that he experienced trouble with standing and walking for extended periods of time. Upon examination he displayed left knee flexion from 0-130 degrees, and extension from 130-0 degrees. The Veteran was observed to be able to perform repetitive use of his left knee without any additional loss of range of motion or function. The examiner noted that the examination was not being conducted during a flare-up and that they would be unable to speculate on the limitation of range of motion without resorting to mere speculation. The Veteran’s constant use of a cane for aid in ambulation was noted. The examiner did not endorse a diagnosis of a meniscal condition, ankylosis, genu recurvatum, a disorder of a tibia or fibula, or any other disorder of the left knee. Next, at the March 2019 examination the Veteran reported knee pain and flare-ups which occur following certain movements or activities. He noted that he is unable to lift heavy objects or engage in certain tasks such as walking or standing for a prolonged amount of time. Upon examination he displayed left knee flexion from 0-140 degrees, and extension from 140-0 degrees. The Veteran was observed to be able to perform repetitive use of his left knee without any additional loss of range of motion or function. The examiner noted that the examination was not being conducted during a flare-up, however, they estimated that the Veteran’s range of motion during a flare-up would be 0-130 degrees for flexion, and 130-0 degrees for extension. The Veteran’s constant use of a left knee brace was noted. The examiner did not endorse a diagnosis of a meniscal condition, ankylosis, genu recurvatum, a disorder of a tibia or fibula, or any other disorder of the left knee. Finally, at the January 2021 examination, the Veteran reported knee pain and flare-ups. He noted pain after standing for 15 minutes, sitting for an hour, walking 100 feet, carrying 10 pounds or more, and when climbing stairs. He indicated that he was unable to run, exercise, or engage in yard work due to his knee pain. Concerning flare-ups, he noted that they were precipitated by increased physical activity and weather, resulting in increased pain which he treats with rest, stretching, over-the-counter pain medication, and the application of hot or cold compresses. Upon examination he displayed left knee flexion from 0-40 degrees, and extension from 40-0 degrees. The Veteran was observed to be able to perform repetitive use of his left knee without any additional loss of range of motion or function. The examiner noted that the examination was being conducted during a flare-up. The Veteran’s constant use of a cane and knee brace for aid in ambulation was noted. The examiner did not endorse a diagnosis of a meniscal condition, ankylosis, genu recurvatum, a disorder of a tibia or fibula, or any other disorder of the left knee. The Veteran’s VA treatment records do not report any additional limitation of motion that would warrant a higher rating. To date, the Veteran has not submitted any additional evidence, including private opinions or examinations, to support his claim. The Board also considered whether a higher disability evaluation is warranted on the basis of functional loss due to fatigability, incoordination, pain on movement, pain on weight-bearing, flare-ups, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Sharp v. Shinseki, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 206 -07 (1995). In this case, the Veteran has complained that he is limited in performing activities of daily living due to pain and weakness, including during flare-ups. However, while the Veteran experiences the aforementioned symptoms, overall, the clinical evidence does not appear to demonstrate that these symptoms result in additional and significant functional loss, and his complaints are adequately contemplated in the ratings he currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Of note, the Veteran’s January 2021 VA examination was conducted during a flare-up, and the examiner was able to perform testing of the Veteran’s left knee flexion and extension both of which require the bending of the knee. Furthermore, the results of this examination do not indicate that the Veteran experiences flare-ups to a degree which would warrant a higher evaluation. After a review of the evidence, the Board has determined that a rating in excess of 10 percent for the Veteran’s left knee strain, based on limitation of flexion, is not warranted. The Board recognizes the Veteran’s statements regarding the severity of his left knee strain. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Nevertheless, while he is competent to report the observable physical symptoms of this disability, such as pain, stiffness, and swelling, he is not competent to determine that it has progressed. This issue is medically complex and requires specialized medical education and knowledge of the interaction between multiple systems in the body as well as the ability to interpret complicated diagnostic medical testing. See Jandreau, 492 F.3d at 1377 n.4, See 38 U.S.C. § 1110. Accordingly, the Veteran’s claim for an initial rating in excess of 10 percent for a left knee disability, characterized by limitation of flexion, is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Attorney Advisor