Citation Nr: 21032097 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-53 711A DATE: May 25, 2021 ORDER A rating higher than 20 percent for right knee meniscectomy is denied. A 10 percent rating for right knee limitation of flexion as of June 13, 2018, is granted. A 20 percent rating for right knee limitation of extension as of June 13, 2018, is granted. FINDINGS OF FACT 1. The Veteran's right knee meniscectomy is assigned a 20 percent rating, which is the maximum schedular rating authorized under Diagnostic Code (DC) 5258. 2. As of June 13, 2018, the Veteran's right knee had a limitation of flexion to 45 degrees and a limitation of extension to 15 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for right knee meniscectomy symptoms under DC 5258 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, DC 5258; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 2. As of June 13, 2018, the criteria for a 10 percent rating for limitation of flexion of the right knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. As of June 13, 2018, the criteria for a 20 percent rating for limitation of extension of the right knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2001 to June 2006. The Board remanded the issue of higher ratings for the Veteran's right knee and his posttraumatic stress disorder (PTSD), along with other issues, in October 2020. In February 2021 a Supplemental Statement of the Case (SSOC) was issued regarding the Veteran's right knee and PTSD ratings. In April 2021, the Veteran opted his PTSD claim into the modernized appeal system (AMA) by filing a VA Form 20-0996, Higher Level Review. The Veteran's Higher Level Review form did not include his claim for a higher rating for his right knee and that claim was returned to the Board for adjudication. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The amputation rule provides, in pertinent part, that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were an amputation to be performed. 38 C.F.R. § 4.68. Right Knee The Veteran's right knee is currently service connected for symptoms associated with meniscectomy (DCs 5010-5258) at 20 percent. Under this DC, the Veteran is in receipt of the maximum rating possible. Thus, in this case, there is no legal basis upon which to award a higher rating for his meniscectomy symptoms, as the maximum rating for this condition has already been assigned. The Veteran's claim for such a benefit is consequently without legal merit and must be denied. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); Sabonis v. Brown, 6 Vet. App. 426 (1994). However, as of a June 2018 private knee examination, the Veteran's right knee flexion was shown to be to 45 degrees and his extension was shown to be limited to 15 degrees. Normal extension of the knee is to 0 degrees and normal flexion of the knee is to 140 degrees. 38 C.F.R. § 4.71a, Plate II. DC 5260 provides for a 10 percent with flexion limited to 45 degrees; a 20 percent rating with flexion limited to 30 degrees; and the highest available 30 percent rating with flexion limited to 15 degrees. DC 5261 provides a 50 percent rating is to be assigned when extension is limited at 45 degrees; a 40 percent rating when limited at 30 degrees; a 30 percent rating when limited at 20 degrees; a 20 percent rating when limited at 15 degrees; a 10 percent rating when limited at 10 degrees; and a 0 percent rating when limited at 5 degrees. 38 C.F.R. § 4.71a. Thus, based on and as of the June 2018 examination, the Veteran's right knee warrants a 10 percent rating for limitation of flexion under DC 5260 and a 20 percent rating for limitation of extension under DC 5261. Prior to the June 2018 examination, the Veteran's right knee was not shown to have such limitations and there is no evidence to support any rating for loss of motion prior to the June 13, 2018 private examination. The Board notes that the June 2018 examination also found favorable ankylosis of the Veteran's right knee. However, per the amputation rule and specific to the knee, an above the knee amputation, not to include a thigh amputation, is rated 60 percent disabling. 38 C.F.R. § 4.71a, DCs 5162, 5163. Accordingly, the Veteran may not receive a combined rating greater than 60 percent for a right lower extremity disability above the knee. Considering the ratings granted for the Veteran's limitation of flexion and extension, above, as of June 13, 2018, and his previously established ratings for his right knee, the Veteran's right knee has a total combined rating of 60 percent. Thus, a separate rating under any other diagnostic code pertaining to the knee would violate the amputation rule. 38 C.F.R. § 4.68. In sum, the Veteran's right knee warrants a 10 percent rating for limitation of flexion and a 20 percent rating for limitation of extension as of June 13, 2018. Prior to that date, there is no evidence of record which would support any higher or additional ratings, as there are no records which indicate the Veteran had compensable limitations for his range of motion prior to the June 2018 private examination. As of June 13, 2018, the Veteran's right knee has reached the maximum allowed rating of 60 percent and no further ratings are allowed by law. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.