Citation Nr: 21040475 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-00 129 DATE: July 3, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for right knee strain is denied. FINDING OF FACT The Veteran's right knee strain manifests with painful motion. Remaining functional flexion is better than 45 degrees. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for right knee strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1989 to December 1997. This matter was remanded by the Board in August 2019 for evidentiary development. 1. Entitlement to an initial evaluation in excess of 10 percent for right knee strain Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the current uniform 10 percent evaluation is warranted for the entire period on appeal. When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 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." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). The Veteran is in receipt of an initial 10 percent evaluation for right knee strain under Diagnostic Code 5260, effective November 17, 2011. He has challenged the initial evaluation. The AOJ awarded this initial 10 percent evaluation on the basis of painful motion under 38 C.F.R. § 4.59 in an August 2020 rating decision. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Relevant to the knee, Diagnostic Codes 5257 and 5262 were amended. These codes are not applicable here and will not be discussed further. The medical evidence makes clear that there is no recurrent subluxation or lateral instability, patellar instability, or impairment of the tibia and fibula. Notably, the Veteran has not asserted that he experiences any form of instability of the right knee. As such, these Diagnostic Codes are not applicable. Diagnostic Code 5260 is used to denote the rating criteria for the limitation of flexion of the leg. Limitation of flexion is rated as follows: flexion limited to 60 degrees warrants a noncompensable rating; flexion limited to 45 degrees warrants a 10 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 evaluates limitation of extension as follows: extension limited to 5 degrees warrants a noncompensable rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 30 degrees warrants a 40 percent rating; and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The now assigned 10 percent evaluation for the right knee contemplates pain on motion. It is also consistent with limitation of flexion to 45 degrees. Separate evaluations may be assigned for limitation of flexion and extension of the same joint. See VAOPGCPREC 09-04 (September 17, 2004). Specifically, when a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. At a September 2013 VA examination, right knee flexion was 140 degrees or greater and extension was 0 degrees. There was no objective evidence of pain on motion. There was no additional limitation of motion upon repetitive use testing. There was no additional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination. Strength was normal. There was no instability, laxity, or recurrent effusion. There was no patellar or meniscal disorder. The Board notes that its August 2019 Remand found a February 2017 VA examination to be inadequate due to its failure to discuss flare-ups with respect to estimating the functional loss due to flareups or adequately explaining why such an estimate could not be provided without resort to speculation. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran reported flare-ups of the right knee when he "puts too much stress like trying to run" resulting in him limping for several days. While the February 2017 examiner failed to adequately discuss flare-ups, it is of note that the reported evidence does not support the Veteran's claim. Right knee flexion was 120 degrees and extension 0 degrees. There was no additional limitation of motion upon repetitive use testing. There was additional limitation due to fatigue, with flexion limited to 110 degrees after repeated use over time. There was not additional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination. Strength was normal. There was no instability, laxity, or recurrent effusion. There was no patellar or meniscal disorder. At the March 2020 VA examination ordered by the Board Remand, the Veteran specifically denied flare-ups. Right knee flexion was 90 degrees and extension was 0 degrees. There was objective evidence of pain on motion upon flexion only. There was mild localized tenderness or pain on palpation. There was no additional limitation of motion upon repetitive use testing. There was additional limitation due to pain, with flexion limited to 80 degrees after repeated use over time. There was no additional limitation due to fatigue, weakness, lack of endurance, or incoordination. Strength was normal. There was no instability, laxity, or recurrent effusion. There was no patellar or meniscal disorder. VA treatment records are not inconsistent with the findings of the VA examinations. The preponderance of the evidence is against a finding of an evaluation in excess of 10 percent due to limitation of motion. The current evaluation contemplates pain on motion. In addition, it is consistent with limitation of flexion to 45 degrees. Higher evaluation may be assigned for the functional equivalent of limitation of flexion to 30 degrees. Here, nothing suggests that flexion is functionally limited to less than 45 degrees. Furthermore, extension has not been restricted to 10 degrees in the right knee. The Veteran has not exhibited a sufficient degree of limited flexion or extension in either knee, even when accounting for the factors of functional loss, to warrant higher or separate evaluations. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. There is no indication that the Veteran experiences any additional functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint to warrant a higher rating. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, supra. While the Veteran has at times reported flare-ups, there is no evidence that flare-ups (to the extent he experiences them, noting that he specifically denied flare-ups at the most recent VA examination) result in additional limitation consistent with a higher evaluation for the right knee. With respect to other potentially applicable rating criteria, there is no competent lay or medical evidence indicating that the Veteran's right knee disability has been manifested by instability, ankylosis, dislocation of cartilage, impairment of the tibia and fibula, or symptoms other than those discussed above at any time during the appeal period. As such, an initial evaluation of 10 percent for the right knee is not warranted under any potentially applicable Diagnostic Code. The preponderance of the evidence is against an initial evaluation in excess of 10 percent for the right knee. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. R. Stephens, 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.