Citation Nr: 22017997 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 18-52 071 DATE: March 27, 2022 ORDER A disability rating in excess of 30 percent for right knee laxity, outside a period of convalescence, is denied. A disability rating in excess of 10 percent for right knee limitation of flexion, outside a period of convalescence, is denied. A disability rating in excess of 10 percent for right limitation of extension is denied. FINDINGS OF FACT 1. Outside a period of convalescence, the Veteran's service-connected right knee laxity is assigned a 30 percent rating, the maximum rating authorized under Diagnostic Code (DC) 5257. 2. Outside a period of convalescence, the Veteran's right knee disability has not demonstrated flexion limited to 30 degrees or less, flexion limited to 15 degrees or more, ankylosis, dislocated or symptomatic post-removal semilunar cartilage, genu recurvatum, or malunion of tibia or fibula. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for right knee recurrent subluxation or lateral instability, outside a period of convalescence, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 5010-5257. 2. The criteria for a disability rating in excess of 10 percent for right knee limitation of flexion, outside a period of convalescence, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DCs 5010-5260. 3. The criteria for a disability rating in excess of 10 percent for right knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DCs 5003-5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1996 to July 1998. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2019 Department of Veterans Affairs (VA) rating decision. This appeal was previously remanded by the Board in June 2021. Increased Rating 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 appellant working or seeking work. 38 C.F.R. § 4.2. 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. Reasonable doubt regarding degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran has been granted three separate ratings for his service-connected right knee disability outside a period of convalescence from November 6, 2014, to December 31, 2014. Specifically, he has been granted a 30 percent rating for right knee laxity, a 10 percent rating for right knee limitation of flexion, and a 10 percent rating for left knee limitation of extension. With respect to disabilities of the knees, 38 C.F.R. § 4.71a, DCs 5256 through 5263 set forth relevant provisions. DC 5257 evaluates recurrent subluxation or lateral instability. A 30 percent rating, the maximum rating, is assigned for severe recurrent subluxation or lateral instability. DC 5260 evaluates limitation of flexion. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. DC 5261 evaluates limitation of extension. A 10 percent rating is assigned for extension limited at 10 degrees. A 20 percent rating is assigned for extension limited at 15 degrees. A 30 percent rating is assigned for extension limited at 20 degrees. A 40 percent rating is assigned for extension limited at 30 degrees. A 50 percent rating is assigned for extension limited at 45 degrees. Separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, as well as for instability, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. The criteria for evaluating musculoskeletal disorders, including DC 5257, were amended effective February 7, 2021. However, under the revised criteria, a 30 percent rating remains the maximum rating. DC 5256 evaluates ankylosis of a knee, DCs 5258 and 5259 evaluates dislocated or postoperative symptomatic semilunar cartilage, DC 5262 evaluates impairment of the tibia and fibula, and DC 5263 evaluates genu recurvatum. The rating criteria pertaining to DC 5262 was revised effective February 7, 2021. However, the medical record does not document any of these conditions as being present. Therefore, these DCs, including the February 7, 2021 effective revisions, are not applicable and will not be discussed further. Normal ranges of motion of the knee are extension to 0 degrees and flexion to 140 degrees. 38 C.F.R. § 4.71, Plate II. Turning to the medical evidence, September 2013 VA treatment records showed that his right knee was positive for effusion. Range of motion was noted to be 0 to 110 degrees with pain. In August 2014, his range of motion was noted to be 0 to 120 degrees and was stable to varus/valgus stress, but he reported that his knee "gave out" if he ambulated without a brace. A January 2015 treatment letter from the Veteran's treating physical therapist noted that he had range of motion from 0 to 120 degrees, with pain. The Veteran rated his pain as 8 to 10 out of ten. The provider noted that he did not use an assistive device. At a December 2018 VA examination, the Veteran reported swelling, pain, and loss of range of motion. Specifically, he noted flare ups in the form of constant dull aching pain and swelling. He also reported that he could not stand for long periods, walk, run, or jump. Range of motion testing revealed flexion to 50 degrees and extension to 0 degrees. The examiner noted that the Veteran was unable to do knee bends or squats. Pain was noted upon range of motion testing, but he was able to perform repetitive use testing without any additional loss of range of motion. Pain was noted to cause functional loss, and the examiner noted that per the Veteran's reports, after repeated use the loss of range of motion was variable, depending on how strenuously the joint was used. The Veteran reported that at its worst, the Veteran could not move it at all but that other times, the loss of range was minimal. Less movement, swelling, and pain was noted to interfere with locomotion, sitting and standing. No muscle atrophy or ankylosis was noted. There was also no history or evidence of recurrent subluxation, lateral instability or effusion. However, anterior instability was noted as 1+. A meniscal tear was noted, but there was no evidence of episodes of locking, pain or effusion, and constant use of a brace was noted. There were no tibial or fibular conditions noted. At a July 2019 VA examination, the Veteran complained of weakness, swelling, popping, pain and tenderness. He reported difficulty with standing, climbing steps, walking, and bending of the knee. Range of motion testing revealed flexion to 140 degrees, and extension to 0 degrees. There was no evidence of pain noted on examination or pain on weightbearing. He was able to perform repetitive use testing without any additional loss of range of motion. The examiner noted that the Veteran did not have any right knee complaints, and he denied any flare-ups. There was no muscle atrophy or ankylosis, recurrent subluxation, or lateral instability. Joint stability testing was performed and showed no joint instability, including any anterior instability. There was also not patellar dislocation, shin splints, medial tibial stress syndrome, or any other tibial or fibular impairment. His meniscal condition was noted but without any evidence of frequent episodes of locking, pain, or effusion. At an August 2020 VA examination, the Veteran complained of right knee pain and swelling, especially with cold weather. He also reported pain with walking, applying pressure to his right knee, and when he stands up. He stated that he had right knee weakness and that his legs gave out on him frequently. He reported at least one to two falls per month, and that he wore a knee brace constantly. He also stated that he had a flare-up approximately every three days with a pain level of 10 out of 10. He reported difficulty with walking, standing up from a seated position, prolonged standing, lifting, climbing, running, and bending. Range of motion testing revealed flexion to 140 degrees and extension to 0 degrees. Pain was noted on flexion and extension, with evidence of crepitus and pain on weight bearings. He was able to perform repetitive use testing without any additional loss of range of motion. The examiner noted that pain, weakness, and lack of endurance caused functional loss, and described it in terms of a completely normal range of motion. There was no muscle atrophy or ankylosis, recurrent subluxation, or lateral instability. Joint stability testing was performed and showed 1+ of anterior instability once again. There was not patellar dislocation, shin splints, medial tibial stress syndrome or any other tibial or fibular impairment. His meniscal condition was noted with frequent episodes of joint locking, pain, and effusion. A brace was noted to be used constantly, but without evidence of prescription for such by a medical provider. While evidence of pain on weight-bearing was seen, his range of motion remained the same as active range of motion. At a July 2021 VA examination, the Veteran reported daily flare-ups of the right knee which were moderate to severe, at least three to four hours or all day. He noted that this was precipitated by prolonged standing, long drives, or stretching. He stated that he was unable to perform activities such as prolonged standing, squatting, or bending. He noted that he had a history of instability in his right knee due to his torn ACL, as well as swelling. Range of motion testing revealed flexion to 90 degrees and extension to 10 degrees. After repetitive use testing, there was a drop in range of motion to 70 degrees flexion and 10 degrees extension, with pain and weakness noted. The examiner noted that this was the same range of motion which would be expected after repeated use over time. The examination was noted to be occurring during a flare-up, with range of motion being estimated to 70 degrees flexion and 10 degrees extension. There was no muscle atrophy, but there was interference with standing, disturbance of locomotion and deformity noted. There was no ankylosis. Joint stability testing showed no recurrent subluxation or persistent instability, but that there was a ligament tear which was completely repaired and required a prescription for a brace by a medical provider. There was also no recurrent patellar instability, or tibial or fibular impairment. The meniscal condition was noted, but did not result in any episodes of locking, effusion, or joint pain. Increased laxity was noted as a residual sign or symptoms of the Veteran's meniscectomy. The examiner noted that there was a history of severe lateral instability based on the Veteran's reports, but that there were findings of joint instability upon examination. The examiner noted that the right knee anterior instability test result is 1+ (0-5 mm), and that posterior instability, medial instability, and lateral instability testing were all normal. Regarding the Veteran's right knee laxity, a 30 percent rating has been assigned, outside a period of convalescence, the maximum schedular rating available under DC 5257. Therefore, there is no legal basis for a higher schedular rating. Regarding the Veteran's right knee limitation of flexion, he has not demonstrated flexion limited to 30 degrees or less, equivalent to a 20 percent rating, at any time. He also has not demonstrated extension limited to 15 degrees or more, equivalent to a 20 percent rating, at any time. Accordingly, ratings in excess of 10 percent under DC 5260 and DC 5261 are not warranted. Regarding the meniscus, while the VA examiners noted that the Veteran had a meniscal tear, a dislocated or removed meniscus has not been shown. As such, a separate rating under DC 5258 or 5259 is not warranted. The Board has considered whether a higher disability evaluation may be warranted on the basis of functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, 8 Vet. App. 202. The VA examiners indicated that repetitive use over a period of time did not result in limitation of flexion or extension in excess of the ratings that have been assigned. Accordingly, higher ratings based on functional loss due to pain are not warranted. While the Veteran reported experiencing right knee pain (and the Board does not doubt the credibility of these competent statements), pain alone is not sufficient to warrant a higher rating, unless it results in additional loss of function. Mitchell, 25 Vet. App. 32, 36-38. The Board has no reason to question that the Veteran's right knee disability results in functional limitations. These limitations are contemplated by the criteria for the ratings that are already assigned. The Board finds that the Veteran's right knee symptoms do not include any that are not adequately addressed by the schedular rating criteria. Accordingly, the criteria for a rating in excess of 30 percent for right knee laxity, a rating in excess of 10 percent for right knee limitation of flexion, and a rating in excess of 10 percent for right limitation of extension, outside a period of convalescence, have not been met, and the claims are denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.