Citation Nr: 21040437 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-41 533 DATE: July 3, 2021 ORDER Entitlement to an initial compensable rating of limitation of flexion of the left knee strain is denied. Entitlement to an initial compensable rating of limitation of flexion of the right knee degenerative joint disease is denied. Entitlement to a rating in excess of 10 percent for the left knee strain is denied. Entitlement to a rating in excess of 10 percent for the right knee degenerative joint disease is denied. Entitlement to a rating in excess of 10 percent for left knee instability is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's left knee strain has been manifested, at worst, by flexion to 60 degrees and extension to 5 degrees. 2. Throughout the appeal period, the Veteran's right knee degenerative joint disease has been manifested, at worst, by flexion to 60 degrees and extension to 5 degrees 3. The Veteran's left knee strain has been manifested by slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent left knee strain have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5261 (2020). 2. The criteria for a disability rating greater than 10 percent for right knee denigrative joint disease have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5003-5261 (2020). 3. The criteria for a compensable rating for left knee strain, limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5260 (2020). 4. The criteria for a compensable rating for right knee degenerative joint disease, limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5003-5260 (2020). 5. The criteria for a disability rating greater than 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from October 1973 to September 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, WI. The Veteran testified at a hearing before the undersigned in December 2019. The transcript of the hearing is of record. In December 2019, the Board remanded the issues for additional development. In February 2020, the RO granted service connection for left knee instability and granted a 10 percent evaluation effective January 16, 2020. Increased Rating 1. Entitlement to an initial compensable rating of limitation of flexion of the left knee strain 2. Entitlement to an initial compensable rating of limitation of flexion of the right knee degenerative joint disease 3. Entitlement to a rating in excess of 10 percent of limitation of extension of the left knee strain 4. Entitlement to a rating in excess of 10 percent for limitation of extension of the right knee degenerative joint disease 5. Entitlement to a rating in excess of 10 percent for left knee instability Due to the similar nature of the impairments, the claims for increased ratings of the right and left knees will be discussed together herein. The Veteran contends that he is entitled to a rating in excess of 10 percent for his left strain, right knee degenerative joint disease, and left knee instability. He further contends he is entitled to a compensable rating for his right knee degenerative joint disease and left knee strain limitations of flexion. The Veteran alleges the currently assigned ratings do not adequately represent the severity of his conditions. By way of history, a June 2012 rating decision granted service connection for degenerative joint disease of the right knee and assigned a 10 percent disability rating. In October 2013, service connection for a left knee strain was granted and assigned a 10 percent disability rating. In September 2015, service connection for limitation of flexion of the left and right knees was granted with a noncompensable rating effective June 9, 2015. A separate rating for left knee instability was granted in a February 2020 rating decision. This appeal stems from a June 2015 claim for an increased rating. The Veteran's service-connected left and right knee disabilities have been rated under the provisions of 38 C.F.R. § 4.71a, DC 5260-5010. The Veteran's right knee instability has been rated under 38 C.F.R. § 4.71a, DC 5003-5257. DC 5010 provides that traumatic arthritis, due to trauma and substantiated by x-ray findings, is to be evaluated as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a. Degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Where there is evidence of arthritis and noncompensable limitation of motion, a 10 percent rating is for assignment. 38 C.F.R. § 4.71a, DC 5003. Under DC 5260, limitation of leg flexion is rated noncompensable where flexion is limited to 60 degrees; 10 percent where flexion is limited to 45 degrees; 20 percent where flexion is limited to 30 degrees; and 30 percent where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, limitation of leg extension is rated 10 percent disabling where extension is limited to 10 degrees, 20 percent disabling where extension is limited to 15 degrees, and 30 percent disabling where extension is limited to 20 degrees. 38 C.F.R. § 4.71a. Under DC 5257, a 10 percent rating is warranted for slight impairment from subluxation or lateral instability. A 20 percent rating is warranted for moderate impairment from subluxation or lateral instability. A maximum, 30 percent rating is warranted for severe impairment from recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Under DC 5258, cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. Id. Turning to the evidence, upon VA examination in August 2015, the Veteran reported flare ups of the bilateral knees manifesting with pain and stiffness. Range of motion testing showed right knee flexion was shown to 65 degrees and left knee flexion to 65 degrees. Bilateral extension was to 0 degrees. There was additional loss of range of motion after three repetitions limiting flexion to 60 degrees bilaterally. The examiner noted the examination was being performed during a flare up and estimated the range of motion during a flare up would be consistent with the 60 degrees of flexion found after repetition. There was no evidence of patellar subluxation or dislocation, muscle strength loss, or lateral instability bilaterally. Upon VA examination in February 2018, the Veteran reported aching pain in the bilateral knees with popping and knee buckling. The Veteran reported no flare ups. Range of motion testing showed right knee flexion was shown to 110 degrees and left knee flexion to 120 degrees. Bilateral extension was to 0 degrees. There was no additional loss of range of motion after three repetitions. Muscle strength testing was rated 4 out of 5 bilaterally indicating active movement against some resistance. There was no evidence of patellar subluxation or dislocation or lateral instability bilaterally. The Veteran indicated during his December 2019 hearing that his bilateral knee disabilities had worsened since the February 2018 VA examination. Specifically, he stated he has increased difficulties with constant pain, popping of the knees, decreased walking ability, balance, and instability. Upon VA examination in January 2020, the Veteran reported constant pain in the bilateral knees especially with prolonged standing, walking, and stairs. The Veteran reported no flare ups, but stated he has difficulty squatting and walking down stairs. Range of motion testing showed right knee flexion was shown to 115 degrees and left knee flexion to 130 degrees. Bilateral extension was to 5 degrees. There was no additional loss of range of motion after three repetitions. Muscle strength testing was rated 4 out of 5 bilaterally indicating active movement against some resistance. There was no evidence of patellar subluxation or dislocation, muscle strength loss, or lateral instability in the right knee. In the left knee, muscle strength testing was normal and there was no evidence of patellar subluxation or dislocation, but there was evidence of lateral instability. The Board notes that extensive records were also received from the VA medical center. However, there was no evidence of any additional range of motion testing nor descriptions of functional limitations as related to the Veteran's bilateral knee impairments. The evidence of record demonstrates the Veteran's bilateral knee disability has manifested with flexion at worst to 60 degrees and extension to 5 degrees. Anything greater than 60 degrees of flexion is to be rated noncompensable under Diagnostic Code 5260. 38 C.F.R. § 4.71a. Anything less than 5 degrees of extension is to be rated noncompensable under Diagnostic Code 5261. 38 C.F.R. § 4.71a. Accordingly, an increased evaluation is not warranted. The Veteran's left knee instability has not been shown to be worse than a slight lateral instability. Accordingly, an increased evaluation for left knee instability is also not warranted. The Board has considered the Veteran's reports of bilateral knee instability and popping. However, during the January 2020 VA examination, right knee joint stability testing was normal without objective evidence of instability. Accordingly, a separate rating for recurrent subluxation or lateral instability is not warranted under Diagnostic Code 5257. See VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). Further, while the Veteran has described popping, the objective medical evidence has not shown any history of dislocated semilunar cartilage nor evidence of frequent locking or effusion into the joint. Thus, a separate rating for dislocated semilunar cartilage with frequent epoxides of locking, pain and effusion into the joint is also not warranted. All possibly applicable diagnostic codes have been considered, but the Veteran could not receive a higher disability rating for his left or right knees during this period based on the evidence other than that which has already been established. See 38 C.F.R. § 4.71a. There is no evidence of recurrent subluxation, instability, or recurrent effusion in the right knee. Further, there was no evidence of ankylosis or impairment of the tibia or fibula. The left and right knee symptoms were generally consistent during the period on appeal such that staged ratings are not appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board is grateful for the Veteran's honorable service, and this decision is not meant to detract from that service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a). Unfortunately, the Board concludes that increased ratings are not warranted at this time. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura C. Owens 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.