Citation Nr: 21027278 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-22 448 DATE: May 5, 2021 ORDER An initial rating in excess of 10 percent for left knee internal derangement is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's left knee internal derangement is manifested by flexion limited to, at most, 85 degrees and full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, recurrent subluxation or lateral instability, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. 2. The Veteran is currently in receipt of a separate 20 percent rating for left knee residuals of a torn meniscus. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for left knee internal derangement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 2009 to May 2013. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2014 by a Department of Veterans Affairs (VA) Regional Office. In August 2020, the Board remanded the instant claim for additional development and it now returns for further appellate review. Entitlement to an initial rating in excess of 10 percent for left knee internal derangement. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The appeal period for the Veteran's increased rating claim begins on May 18, 2013, the date service connection was awarded for his left knee internal derangement. Since such time, the Veteran's left knee disability is evaluated as 10 percent disabling pursuant to Diagnostic Code 5260 based on painful limitation of motion. 38 C.F.R. §§ 4.59, 4.71a. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. For a 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. VA's General Counsel has also stated that separate ratings 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. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). In regard to the Veteran's reported left knee symptoms, he reported constant pain, occasional swelling, and his knee giving out a couple times (mainly on the stairs) at a May 2014 VA examination. At an August 2019 VA examination, he indicated that wrong positioning, and prolonged standing and walking caused pain and limited range of motion. Finally, at a November 2020 VA examination, he reported sharp pain, tingling, giving out, and an inability to stand or walk for more than 20-30 minutes. However, even taking into consideration such reports of left knee symptomatology, the Board finds that, as will be discussed below, such does not result in functional loss that more nearly approximates higher or separate ratings under any relevant Diagnostic Code. See DeLuca, supra; Mitchell, supra. Specifically, on examination in May 2014, left knee flexion was limited to 135 degrees with pain and extension was normal to zero degrees, without pain. There was no additional limitation following repetition; and the Veteran denied flare-ups. An August 2017 VA treatment record notes left knee flexion limited to 130 degrees and normal extension to zero degrees, with pain. On examination in August 2019, left knee flexion was limited to 120 degrees and extension was normal to zero degrees, with pain. Following three repetitions, there was additional loss of function/range of motion, to include flexion limited to 100 degrees due to pain, fatigue, weakness, and lack of endurance. Additionally, the examiner indicated that pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time and flare-ups. Here, the examiner noted left knee flexion limited to 95 degrees. A November 2020 VA examination report reflects left knee flexion limited to 100 degrees and normal extension, with pain. Following three repetitions, there was additional loss of function/range of motion, to include flexion limited to 90 degrees due to pain. Additionally, the examiner indicated that pain significantly limited functional ability with repeated use over a period of time (left flexion limited to 90 degrees) and flare-ups (left flexion limited to 85 degrees). The Board notes that, while the aforementioned VA examiners did not record the results of range of motion testing for pain on passive motion or nonweight-bearing, in February 2021, the November 2020 VA examiner indicated that, in accordance with Correia, there was objective evidence of pain on passive range of motion testing and non-weight bearing of the left knee; however, the Veteran's range of motion was the same (flexion limited to 100 degrees and normal extension). Based on the foregoing, the Board finds that, as the Veteran's left knee flexion was limited to, at most, 85 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, a rating in excess of 10 percent is not warranted under Diagnostic Code 5260. Furthermore, as his left knee extension remained full despite such factors, a higher or separate rating is likewise not warranted under Diagnostic Code 5261. Additionally, as the Veteran testified that he experienced giving way of his left knee, the Board has considered whether a higher or separate rating is warranted under Diagnostic Code 5257. VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). In this regard, such Diagnostic Code provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. Further, Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. English v. Wilkie, 30 Vet. App. 347 (2018). In this regard, while the Veteran is competent to describe feelings of giving way, he is not competent as a lay person to diagnose lateral instability or recurrent subluxation as such requires the administration and interpretation of specialized testing of the ligaments and patella, respectively. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Rather, the May 2014, August 2019, and November 2020 VA examiners, who have the training to administer and interpret ligament and patellar testing, found that there was no laxity or subluxation in the left knee. Thus, the Board affords greater probative weight to the VA examiners who found no instability or subluxation in the left knee than the Veteran's generalized statements regarding the presence of such impairment. See, e.g., Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, a higher or separate rating under Diagnostic Code 5257 is not warranted. Further, while the Veteran reported tingling in his left knee, he is currently in receipt of a separate rating for left lower extremity radiculopathy. As such, assigning a separate rating for neurological impairment related to the Veteran's left knee disability would result in impermissible pyramiding. 38 C.F.R. § 4.14. Moreover, as the evidence of record does not demonstrate ankylosis, removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum at any time during the pendency of the appeal, Diagnostic Codes 5256, 5259, 5262, and 5263 are not for application. In this regard, the Board notes that the Veteran is currently separately rated for residuals of a left knee meniscus tear under Diagnostic Code 5258, with a rating of 20 percent for the entire period on appeal (as previously granted in the August 2020 Board decision). A 20 percent rating is the maximum rating under Diagnostic Code 5258. In reaching its conclusion in the instant case, the Board acknowledges the Veteran's belief that his left knee disability is more severe than as reflected by the current assigned disability rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert, supra. Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected disability; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Thus, assigning staged ratings for such disability is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Based on the foregoing, the Board finds that an initial rating in excess of 10 percent for the Veteran's left knee disability is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, such doctrine is inapplicable and his initial rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, Associate Counsel 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.