Citation Nr: 1749118	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  11-20 579	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for a left knee disability.

2.  Entitlement to an initial rating in excess of 10 percent for a right knee disability.


ATTORNEY FOR THE BOARD

K. Foster, Associate Counsel


INTRODUCTION

The Veteran had active service from November 1969 to November 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  

The Board remanded the appeal for additional development in February 2015.  The appeal was again remanded in May 2017 to ensure compliance with the Court of Appeals for Veterans Claims (Court) recent precedential opinion in Correia v. McDonald, 28 Vet. App. 158 (2016).  The Board finds that there has been substantial compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDINGS OF FACT

1.  The Veteran's left knee disability did not result in ankylosis or limit flexion of the knee to 30 degrees or less, limit extension to 15 degrees or more, or cause slight, moderate, or severe recurrent subluxation or lateral instability of the left knee.

2.  The Veteran's right knee disability did not result in ankylosis or limit flexion of the knee to 30 degrees or less, limit extension to 15 degrees or more, or cause slight, moderate, or severe recurrent subluxation or lateral instability of the right knee.


CONCLUSION OF LAW

1.  The criteria for an evaluation greater than 10 percent for a left knee disability have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260, 5256, 5257, 5258, 5259, 5261, 5262, 5263 (2017).

2.  The criteria for an initial evaluation greater than 10 percent for a right knee disability have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260, 5256, 5257, 5258, 5259, 5261, 5262, 5263 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

With respect to the issues herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

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.  Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If there is a question as to which evaluation to apply to a veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1999).  In Fenderson v. West, 12 Vet. App. 119 (1999), however, it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability.  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings.  Fenderson, 12 Vet. App. at 126.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45.

When evaluating a loss of motion, consideration is given to the degree of functional loss caused by pain.  Id.  In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups."  Id. at 206.

The General Rating Formula for Diseases and Injuries of the knee are governed under 38 C.F.R. § 4.71a.  Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum).

The criteria of DC 5256 pertain to ankylosis.  Ankylosis refers to immobility and consolidation of a joint due to disease, injury, or surgical procedure).  See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 91 (27th ed. 1988).

According to DC 5257, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability.

Under DC 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.

Under DC 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage.

The DCs that focus on limitation of motion of the knee are DCs 5260 and 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion.  See 38 C.F.R. § 4.71a , Plate II.  Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees.  38 C.F.R. § 4.71a, DC 5260.

Under DC 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees.  38 C.F.R. § 4.71a, DC 5261.

Traumatic arthritis is rated as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5010.  Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved.  In the alternative, a 10 percent rating is warranted if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations.  38 C.F.R. § 4.71a , Diagnostic Code 5003.

Notably, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

However, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply to DC 5257 as those criteria are not predicated on loss of range of motion.  See Johnson v. Brown, 9 Vet. App. 7, 11 (1996).

Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint.  38 C.F.R. § 4.59.  The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

In general, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  The Court has also held that "within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise."  Cullen v. Shinseki, 24 Vet. App. 74 (2010). 

VA's Office of General Counsel has stated that compensating a claimant for separate functional impairment under DCs 5257 and 5003 does not constitute pyramiding.  VAOPGCPREC 23-97 (July 1, 1997).  In this opinion, the VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating is based upon additional disability.  Subsequently, in VAOPGCPREC 9-98 (Aug. 14, 1998), the VA General Counsel further explained that if a Veteran has a disability rating under DC 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59.  See also VAOPGCPREC 9-04 (Sept. 17, 2004) (which finds that separate ratings under DC 5260 for limitation of flexion of the leg and DC 5261 for limitation of extension of the leg may be assigned for disability of the same joint).

Descriptive words, such as "slight," "moderate" and "severe," are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision.  38 U.S.C.A. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, separate ratings may also be assigned for separate periods of time based on the facts found.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Id.  See generally 38 U.S.C.A. § 5110 (b)(2).

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. § 5107 (a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107 (b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  However, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

The Board notes that all evidence in the Veteran's claim file has been reviewed.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).

The Veteran asserts entitlement to a rating in excess of 10 percent for his left and right knee disabilities.  Specifically, he asserts that his right knee strain warrants a higher rating, as well as arthritis and residual from his partial patellectomy in his left knee, which at times makes it impossible to walk.  He also states that his right knee is extremely painful in cold conditions.  See Notice of Disagreement received February 2011.  Most recently, in correspondence received in September 2017, the Veteran writes that he experiences daily and constant pain, especially when he does any physical movement.

The Veteran's left and right knee disabilities have each been assigned a 10 percent rating under DC 5010-5260, limitation of flexion of the knee.  The hyphenated diagnostic code in this instance indicates that traumatic arthritis under Diagnostic Code 5010 is the service-connected disorder and limitation of flexion of the left knee is a residual condition.  See 38 C.F.R. § 4.27.  As discussed above, for an increased rating under Diagnostic Code 5010-5260, the evidence must show limitation of flexion at 30 degrees or less.  Id.  

The Veteran was afforded a VA examination in December 2010.  The Veteran's chief complaint was bilateral knee pain, which he described as moderate to severe constant pain with moderate to severe constant stiffness and weakness of both knees.  The Veteran presented with a mild antalgic altered gait utilizing a cane and bilateral knee braces.  The Veteran denied use of walkers, crutches, and wheelchairs.  He presented with a mild antalgic altered gait utilizing a cane and bilateral knee braces.  The Veteran currently takes naproxen 500 mg once daily for his bilateral knee pain, which he stated has been helpful for his bilateral knee pain with no side effects.  

In regards to his occupation in maintenance, the Veteran reported difficulty standing and walking more than one half hour walking up and down steps and climbing, as well as squatting due to bilateral knee pain.  In regards to activities of daily living, he reported difficulty standing and walking more than one half hour, walking up and down steps, and climbing as well as squatting due to bilateral knee pain.

With active and passive range of motion with use of a goniometer, bilateral knee examination flexion and extension of both knees was 0 to 80 degrees for both knees.  There was evidence of mild-to-moderate pain of both knees with flexion and extension 70 degrees to 80 degrees.  With repetitive use x3 the range of motion did not elicit additional pain fatigue weakness lack of endurance of both knees.  There was no additional loss of function in the knees bilaterally on physical examination.  The Veteran denied any flare-ups of his bilateral knee condition.  There was no instability noted in the knees bilaterally.  The examiner reported negative drawer sign; negative McMurray sign; no swelling; there was mild to moderate tenderness noted along lateral aspect of both knees, but there was no swelling, heat, redness, or drainage.

There was mild to moderate weakness and mild to moderate stiffness of both knees, but no deformity, instability, giving way, locking, effusion, dislocation, subluxation of both knees, or instability noted in the knees bilaterally.  The Veteran had an MRI of the left knee in June 2007, which revealed arthritis of the left knee.

A VA treatment record from April 2011 indicates that the Veteran was seen to obtain bilateral knee braces.

The Veteran was afforded another VA examination in May 2012.  The Veteran was given a diagnosis of bilateral knee strain with range of motion abnormality for both knees, with arthritis of both knees status post residuals of left knee surgery.  The Veteran reported flare-ups in regard to his bilateral knee condition which occurs 3 to 4 times per year, whereby he is incapacitated at bedrest lasting for approximately a duration of 2 to 3 days.

With active and passive range of motion with the use of goniometer the bilateral knee examination showed flexion and extension of both knees 0 to 90 degrees.  There was evidence of mild-to-moderate pain of both knees with flexion and extension from 80 degrees to 90 degrees with wincing of facial expression.  With repetitive use x 3 the range of motion did not elicit additional pain fatigue weakness or lack of endurance.  Post-test, range of motion of both knees remained unchanged.

In regard to functional loss and additional limitation of range of motion the Veteran's excursion, strength, speed, coordination and endurance were all normal for both knees.  There was no additional limitation of range of motion of the knees bilaterally following repetitive use testing.  In regards to functional impairment in his activities of daily living and occupation in maintenance, the Veteran reported difficulty in standing and walking more than half hour, walking up and down steps, and climbing, as well as squatting due to bilateral knee pain.  The functional loss of the lower extremities was that of his bilateral knee evaluation.  There was less movement than normal.  There was no weakened movement, excess fatigability, and incoordination.  There was evidence of mild to moderate pain with range of motion, but no swelling, deformity, atrophy of disuse, or instability of station.  

The Veteran was reported to present with a mild antalgic altered gait.  There was no reported functional impairment in regard to sitting as related to his bilateral knee condition.  The Veteran had difficulty with standing and weight bearing for more than a half hour due to bilateral knee pain.

There was evidence of mild pain mild tenderness on palpation of both knees along the anteromedial and lateral aspect of both knees.  Muscle strength testing was normal at 5/5 normal strength for knee flexion and knee extension bilaterally.  Joint stability tests were all negative; the Lachman test was negative; posterior drawer test negative; mediolateral instability test negative.

There was no evidence of patellar subluxation or dislocation; no additional conditions noted; no shin splints, stress fractures, compartment syndrome, tibiofibular impairment, evidence of leg discrepancy.  The Veteran denied any history of meniscal conditions and no history of meniscal surgery.

The Veteran stated he had surgical procedure to his left knee, a partial patellectomy in May 1971, which did not give any improvement in regards to his left knee condition.  The Veteran denied any surgery to his right knee.  

In regards to physical findings, there were scars noted from his left knee surgery.  The scar, was a diagonal scar and measured 6 cm in length and 0.5 cm in width.  The Veteran had no complaints in regards to the scar of his left knee and the Veteran deferred further examination of the scar of his left knee.

The Veteran presented with a mild-antalgic gait wearing bilateral knee braces on a constant basis and utilizing a cane on a constant basis.  The Veteran denied use of wheelchairs crutches or walkers.  In regards to the remaining effective function of extremities the Veteran's balance and propulsion are both normal as it relates to his bilateral knee evaluation.

In regards to functional impairment, as it relates to activities of daily living and his occupation in maintenance, the examiner noted that the Veteran has difficulty standing and walking for more than a half hour, walking up and down steps, and climbing, as well as squatting due to bilateral knee pain.  

The Veteran was afforded a VA examination in July 2017.  The Veteran had a diagnosis of right knee strain and status post- partial patellectomy for the left knee and scar.  The Veteran reported flare-ups of both knees, as they hurt especially when climbing stairs or kneeling.  The Veteran reported functional loss in climbing stairs, tying shoes, bending, kneeling, and pain which wakes him up at night.  

The examiner reported that active range of motion with use of a goniometer showed bilateral knee examination flexion and extension at 0-130 degrees for both knees.  Active range of motion also elicited functional loss, mild-moderate pain, fatigue, weakness, and lack of endurance.  There was no additional pain, lack of endurance, fatigue, weakness, or additional loss of function with repetitive use x3 of bilateral knees.  The Veteran denied any flare-ups of his bilateral knee condition.  Negative drawer sign, negative Lachman sign, and no swelling were reported bilaterally.  There was mild tenderness noted along the medial and lateral aspect of the left knee and no tenderness to right knee.  There was no swelling, warmth, redness, or inflammation.  There was mild weakness and mild stiffness of both knees, but no deformity, instability, giving way, locking, effusion, dislocation, subluxation, or instability noted in the knees bilaterally.

Passive range of motion, with use of a goniometer, showed flexion and extension of at 0-130 degrees for both knees.  Passive range of motion elicited functional loss, mild-moderate pain, fatigue, weakness, and lack of endurance.  There was no additional pain, lack of endurance, fatigue, weakness, or additional loss of function with repetitive passive range of motion x3 of bilateral knees. The veteran denied any flare-ups of his bilateral knee disability.  Negative drawer sign, negative Lachman sign, and no swelling were reported bilaterally.  There was mild tenderness noted along the medial and lateral aspect of the left knee and no tenderness to right knee.  There was no swelling, warmth, redness, or inflammation.  There was mild weakness and mild stiffness of both knees, but no deformity, instability, giving way, locking, effusion, dislocation, subluxation, or instability noted in the knees bilaterally.

Weightbearing elicited mild functional loss, mild pain, fatigue, weakness, and lack of endurance.  There was no additional pain, lack of endurance, fatigue, weakness, or additional loss of functional of bilateral knees due to weight bearing.  The Veteran denied any flare-ups of his bilateral knee condition.  Negative drawer sign, negative Lachman sign, and no swelling were reported bilaterally.  There was mild tenderness noted along the medial and lateral aspect of the left knee and no tenderness to right knee.  There was no swelling, warmth, redness, or inflammation.  There was mild weakness and mild stiffness of both knees, but no deformity, instability, giving way, locking, effusion, dislocation, subluxation, or instability noted in the knees bilaterally.

Non-weight bearing elicited no functional loss, pain, fatigue, weakness, and lack of endurance.  There was no swelling, warmth, redness, and inflammation in non-weight bearing.  There was no deformity, effusion, dislocation, and subluxation noted in the knees bilaterally.  The Veteran denied any flare-ups of his bilateral knee condition.

The examiner noted the following additional factors contributing to the Veteran's disability.  For the right knee: less movement than normal due to ankyloses, adhesions, etc.; weakened movement due to muscle injury or peripheral nerves injury, etc.; interference with sitting; interference with standing.  For the left knee: less movement than normal due to ankyloses, etc.; weakened movement due to muscle injury or peripheral nerves injury, etc.; interference with sitting; interference with standing.

Muscle strength testing for both knees showed a reduction in muscle strength due to the claimed condition with 4/5 for both knees.  There was no muscle atrophy for either.  There was no noted ankylosis for either knee.  There was no history of recurrent subluxation in either knee.  Stability testing performed for both knees.  There was no reported joint instability for either knee.  There was no recorded recurrent patellar dislocation, "shin splints," stress fractures, chronic exertional compartment syndrome or any other tibial fibular impairment.  There was a noted left knee patellectomy from May 1971 with residuals of pain, weakness, and a scar.  The left knee scar measured 13 cm by 0.5 cm.  The Veteran reported wearing an occasional brace due to bilateral knee pain/weakness.  Imaging studies were noted and no degenerative or traumatic arthritis was documented.

The examiner also provided a description of changes in the Veteran's knees experienced throughout the appeal period.  Specifically, the examiner compared the results of the Veteran's December 2010 VA examination with the July 2017 results.  The examiner stated that the comparison revealed improvement of the Veteran's bilateral knee condition.  Bilateral knee active/passive range of motion with use of a goniometer on flexion and extension of both knees revealed 0 to 80 degrees in December 2010.  However, the VA examination in July 2017 showed improvement of bilateral knee active/passive range of motion with use of a goniometer on flexion and extension of 0-130 degrees. 

However, both examinations of the bilateral knee disability revealed active/passive range of motion with functional loss, mild-moderate pain, fatigue, weakness, and lack of endurance.  There was no additional pain, lack of endurance, fatigue, weakness, or additional loss of function with repetitive use x3 of the bilateral knees.  The Veteran denied any flare-ups of his bilateral knee condition.  Negative drawer sign, and no swelling were reported bilaterally.  There was mild tenderness noted along the lateral aspect of the left knee and no tenderness to right knee.  There was no swelling, warmth, redness, or inflammation.  There was mild weakness and mild stiffness of both knees, but no deformity, instability, giving way, locking, effusion, dislocation, subluxation, or instability noted in the knees bilaterally.

In summary, range of motion, as reported in the July 2017 examination, showed significant improvement with passive/active range of motion in comparison to the December 2010 examination.  However, the Veteran continues to experience functional loss with mild-moderate pain, weakness, fatigue, lack of endurance, mild stiffness, and tenderness.  Clinically, with appropriate exercise of the both knees, such as both bending (flexion) and straightening (extension), which is important for good results, may play a part in the improvement of Veteran bilateral knee condition.  Good motion of both knees is also important for stair climbing, getting up from a chair, squatting, and kneeling.  Furthermore, obtaining full extension allows the knee flexibility and often reduces fatigue of the quadriceps muscles when standing for a long period of time.  It also allows both knees to function more properly during walking after injury or surgery as in the case of the Veteran.

Upon review of the evidence above, the Board finds that the criteria for increased ratings under 38 C.F.R. § 4.71a, DC 5010-5260.  At a December 2010 VA examination, it was reported that the Veteran's flexion of both knees was limited to 80 degrees, with evidence of mild-to-moderate pain with flexion 70 to 80 degrees.  The May 2012 VA examination also weighs against the assignment of increased ratings.  This examination indicated that the Veteran's flexion of both knees was 0 to 90 degrees, with evidence of mild-to-moderate pain with flexion 80 to 90 degrees.  In addition, the July 2017 VA examination indicated that the Veteran's flexion of both knees was 0 to 130 degrees on both active and passive motion, which is far greater than the limitation to 30 degrees required for the next higher rating under DC 5010-5260.   

Even considering the Veteran's complaints of pain, flare-ups, fatigue, weakness, and lack of endurance, the Board cannot find that the limitation of flexion more nearly approximates a limitation to 30 degrees.  Moreover, the examiner found no additional loss of ROM after repetitive use.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7.  Even if the Board applied solely the December 2010 VA examination results, which showed pain with flexion 70 to 80, the range of motion is still far greater than the 30 degrees required for the next higher rating under 38 C.F.R. § 4.71a, DC 5010-5260.

The Board has also considered the Veteran's testimony; however, the Veteran's testimony is not sufficient to support the assignment of higher rating under DC 5010-5060.  The Veteran has stated that he has pain, but has not indicated that his range of motion was limited to or nearly to 30 degrees.

Consequently, the Board finds that ratings in excess of 10 percent are not warranted under DC 5010-5260 for the Veteran's bilateral knee disability.  The competent evidence of record does not show that either knee has flexion limited to 30 degrees or less during the period on appeal.  Even considering additional functional loss due to pain, fatigue, weakness, and lack of endurance, the Board cannot find that limitation of flexion more nearly approximates the criteria for a 20 percent rating.

The Board has considered whether a rating is warranted under DC 5010-5261, limitation of extension, however, the evidence does not show that the Veteran's extension of the left knee has been limited to 10 degrees or more during the period on appeal.  The Board has also considered whether a separate rating is warranted under DC 5257.  While there is an indication in the record that the Veteran ordered braces for his knees, none of the VA examinations noted instability or recurrent subluxation.  Indeed the July 2017 examination indicated that the Veteran reported wearing an occasional brace due to knee pain/weakness.

In addition, the Board has considered whether a separate rating is warranted under DCs 5258 and 5259; however, the evidence does not show that the Veteran has had frequent episodes of locking of the knee or effusion into the joint.

Further, there is no evidence of ankylosis, impairment of tibia and fibula, or genu recurvatum; therefore, separate ratings under Diagnostic Codes 5256, 5262, and 5263 are not warranted.

Finally, while a surgical scar was noted on the knee, it has not been shown to be painful and this a separate rating for the scar is not warranted.

In summary, the evidence of record does not reveal impairment sufficient to meet the rating criteria in excess of 10 percent under 38 C.F.R. § 4.71a, DC 5010-5260, for either the right or left knee.  The preponderance of the evidence is against assignment of higher ratings under these diagnostic codes for disabilities of the right and left knee during the period on appeal and as such, the claims are denied.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to a rating in excess of 10 percent for a left knee disability, is denied.

Entitlement to an initial rating in excess of 10 percent for a right knee disability, is denied.




______________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals





Department of Veterans Affairs

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