Citation Nr: 21027147 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 12-06 783 DATE: May 4, 2021 ORDER An initial disability rating in excess of 30 percent for degenerative joint disease, patellofemoral pain syndrome, and periarticular osteopenia of the left knee, from February 18, 2010 to November 4, 2015, is denied. FINDING OF FACT For the initial rating period on appeal from February 18, 2010 to November 4, 2015, the degenerative joint disease, patellofemoral pain syndrome, and periarticular osteopenia of the left knee has been manifested by pain, limitation of flexion to 15 degrees, and no ankylosis of the knee joint. CONCLUSION OF LAW For the initial rating period on appeal from February 18, 2010 to November 4, 2015, the criteria for a disability rating in excess of 30 percent for the degenerative joint disease, patellofemoral pain syndrome, and periarticular osteopenia of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from September 9, 1975 to December 18, 1975, during Peacetime. The Veteran initially applied for service connection for the left knee in February 2010. A 10 percent disability rating was granted in a rating decision dated October 2010. In October 2010, the Veteran filed a notice of disagreement with the initial rating assigned. The appeal first was before the Board in November 2016, where the Board denied a higher initial rating than 10 percent. Upon appeal to the Court of Appeals for Veterans Claims (Court), the Court remanded the decision to the Board to obtain a retrospective examination to comply with Correia and 38 C.F.R. § 4.59. The Board remanded to obtain said examination in August 2018. In September 2020, the Agency of Original Jurisdiction (AOJ) granted a higher initial rating of 30 percent for this initial rating period. Another remand was issued by the Board in December 2020 for a further examination to determine if a higher alternative rating was warranted. The case has returned to the Board. Rating the degenerative joint disease, patellofemoral pain syndrome, and periarticular osteopenia of the left knee from February 18, 2010 to November 4, 2015. For the initial rating period on appeal from February 18, 2010 to November 4, 2015, the Veteran is in receipt of a 30 percent rating for the left knee disability under DC 5260, based on limitation of flexion of the knee. The 30 percent rating is granted under DC 5260 for limitation of flexion to 15 degrees or less. 30 percent is the highest schedular rating available under DC 5260 based on limitation of flexion. A possible higher rating is available under DC 5256 if the knee is ankylosed (fixed in position). Under DC 5256, a rating of 40 percent is warranted where there is ankylosis of the knee in flexion between 10 and 20 degrees. After a review of all the lay and medical evidence, the Board finds that a higher rating under DC 5256 is not warranted because the weight of the lay and medical evidence shows the left knee is not ankylosed for any period. The Veteran has not credibly described fixation approximating ankylosis, either due to actual fixation or severe knee symptoms that preclude movement. The specifically measured ranges of motion show no ankylosis, and specifically measure available ranges of motion. The Veteran's long history of symptoms and impairments, including difficulties with running and prolonged walking, show there is no ankylosis of the left knee for the initial rating period on appeal. None of the Veteran's statements have reported any distinguishing symptoms of ankylosis. VA examinations performed in September 2010 and December 2011 found no evidence of ankylosis of the left knee. Imaging studies performed in September 2010 also found no evidence of ankylosis. Private and VA treatment records from the period on appeal do not show ankylosis. The addendum to the retrospective VA examination performed in March 2019 concurs that there is no evidence to support finding ankylosis during the period on appeal. For the entire rating period on appeal from February 18, 2010 to November 4, 2015, the criteria for a disability rating in excess of 30 percent for the degenerative joint disease, patellofemoral pain syndrome, and periarticular osteopenia of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5260. The Board now turns to possible separate ratings the Veteran could receive for the left knee disabilitie. Possible higher separate ratings are available under DCs 5257, 5261 and 5263. Under DC 5257, a rating of 10 percent is warranted where there is slight recurrent subluxation or lateral instability; a rating of 20 percent is warranted where there is moderate recurrent subluxation or lateral instability; and a rating of 30 percent is warranted where there is severe recurrent subluxation or lateral instability. Under DC 5261, ratings of 0, 10, 30, 40, and 50 percent are warranted where extension of the knee is limited to 5, 10, 15, 20, 30, and 45 degrees, respectively. Under DC 5263, a 10 percent rating is warranted where there is acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. Regarding DC 5257, while the Veteran has reported that the left knee is not stable, such assertions are not credible, as they are outweighed by other lay and medical evidence showing no instability. In an October 2010 statement in support of the initial left knee claim, the Veteran reported that the left knee is very unstable. The Veteran reiterated this contention on the Form 9 filed in March 2012. After weighing the evidence, lay and medical, the Board finds that a separate compensable rating under DC 5257 is not warranted. While the Veteran is competent to testify as to symptoms she can experience or perceive, including symptoms of instability, the Board finds that these statements regarding the instability of the left knee are outweighed by her own earlier statements, and other more probative evidence, that shows the left knee is not unstable. During the initial September 2010 VA examination, the Veteran reported in the summary of joint symptoms that the left knee was not unstable, contradicting her later statements made during the evolution of this appeal. During a VA examination in December 2011, the examiner found no evidence of instability. Private treatment records from January 2011 note that there are no objective signs of instability. VA treatment records from January 2012 report that the Veteran is able to ambulate without difficulty. VA treatment records from October 2015 do note an unsteady gait, and show that the Veteran does not need to use a cane or a walker, both of which she owned at the time. Regarding DC 5261, the Board finds that, after weighing all the evidence, lay and medical, a separate rating is not warranted for limitation of extension. In March 2019, during the retrospective compensation examination, the Veteran claimed that, during the appeal period, her left knee had no range of motion at all due to pain during flare-ups. As noted above, the Veteran is competent to testify as to such symptoms; however, the Board finds these statements of complete immobility of the left knee to be contradicted by, and outweighed by, the remainder of the lay and medical evidence, such that this more recent assertion, made pursuant to compensation and not for treatment, of not having any range of motion of the left knee, is not credible. Prior to March 2019, the Veteran did not report experiencing such severe flare-ups. Initially, the Veteran previously reported being able to run short distances, stand for 30 minutes at a time, and walk one quarter of a mile before beginning to feel pain, stiffness, and weakness. See June 2010 Veteran's Statement; September 2010 VA Examination. Later, in March 2012, the Veteran reported not being unable to run at all. By June 2015, during VA treatment, the Veteran reported being able to climb three flights of steps each day without stopping as part of her daily work routine. The Board finds that the 2010 and 2015 statements are more credible than the 2012 and 2019 statements. The 2012 and 2019 statements were both made for compensation purposes, as opposed to histories presented for treatment. The 2010 statement, while made for compensation purposes, is consistent with the 2015 statement, which is made for treatment purposes. The 2010 and 2015 statements are also more consistent with the specific clinical findings and measures of limitations of motion of record, than are the 2012 and 2019 statements. In September 2010, the Veteran reported experiencing severe flare-ups 1 to 2 days a week that are controlled by Motrin. In contrast, more recently in March 2019, the Veteran reported that, for the entire period on appeal, her flare-ups lasted for up to two days, with pain at a 10 out of 10. Examining all these statements, the Board finds the Veteran's reports that during the period on appeal her left knee was completely limited in extension, and that there are such frequent flareups of the maximum possible pain severity, are not credible. The contemporary reporting that she was able to run and able to climb three flights of stairs every day contradict her later statements that, for up to two days per week during the period on appeal, there was no range of motion in the left leg, and the pain was so severe than a higher pain level is not possible, notwithstanding the only prescribed treatment is Motrin. Such broad assertion of ankylosis, frequent flareups, and maximum possible pain levels are inconsistent with other reports of flareups, pain levels, and measures of extension in the left knee. VA examinations from 2011 describe full range of motion in extension in the left knee. VA treatment records from 2010 to 2015 note limitation of flexion in the left knee, but do not describe any limitation of extension in the left knee. VA treatment records note that the Veteran is able to ambulate well, and the Veteran reported not using a cane or walker. In March 2019, VA examined the Veteran in compliance with the Court's remand requirements. The remand was required to address missing passive range of motion testing from earlier examinations. The retrospective opinion notes that there is no evidence, lay or medical, of pain on passive range of motion testing. Consequently, VA has fulfilled its obligations under the Court and Board remands. Finally, rating under DC 5263 requires an objective finding of acquired traumatic genu recurvatum. The record does not contain any mention in the lay or medical evidence of genu recurvatum; therefore, a separate rating under 5263 is not warranted. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Charles Plambeck 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.