Citation Nr: 1749053	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  11-14 486	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

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

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


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. Berryman, Associate Counsel



INTRODUCTION

The Veteran had active service in the Army from July 2004 to November 2007.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In November 2015, the Board remanded the Veteran's claims for further development.  The Board is satisfied that there was at the very least substantial compliance with its remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-157 (1999).  


FINDINGS OF FACT

1.  The Veteran's left knee disability does not result in flexion functionally limited to 30 degrees or less or extension functionally limited to 10 degrees or more.

2.  The Veteran's right knee disability does not result in flexion functionally limited to 30 degrees or less or extension functionally limited to 10 degrees or more.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 10 percent for the Veteran's left knee disability have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5019, 5260-5261 (2016).

2.  The criteria for a disability rating in excess of 10 percent for the Veteran's right knee disability have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 2019, 5260-5261 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of the claims at this time is warranted. 

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA treatment records and private treatment records have been obtained.  Additionally, the Veteran was offered the opportunity to testify before the Board, but he declined.

The Veteran was also provided VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners provided the information necessary to rate the service-connected disabilities on appeal.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Moreover, neither the Veteran nor his representative has objected to the adequacy of the examinations conducted during this appeal.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). 
 
As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.



Increased Ratings
	
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.A. § 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. 

In July 2008, the Veteran filed a claim seeking service connection for his left and right knee disabilities.  In February 2009, he was granted service connection for a left knee disability effective November 4, 2007, the application date of his original service connection claim for a knee disability, and assigned a noncompensable rating effective November 4, 2007.  He was also granted increased ratings of 10 percent for his left and right knee disabilities effective July 14, 2008, the date of his claim for an increased rating.  He asserts that he is entitled to higher ratings.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  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 it 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 that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995).
Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion.  38 C.F.R. § 4.71, Plate II.

The Veteran's left and right knee disabilities are currently rated at 10 percent disabling under Diagnostic Codes 5019-5260.  The hyphenated codes are intended to show that the Veteran's service-connected disability is rated by analogy as bursitis (Diagnostic Code 5019), which is rated based on limitation of motion of affected parts.  

Diagnostic Code 5260 evaluates limitation of knee 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 or extension limited to 15 degrees.  A 30 percent rating is assigned for either flexion limited to 15 degrees or extension limited to 20 degrees.

Diagnostic Code 5261 evaluates limitation of knee extension.  10 percent rating is assigned for extension limited to 10 degrees.  A 20 percent rating is assigned for extension limited to 15 degrees.  A 30 percent rating is assigned for extension limited to 20 degrees.  A 40 percent rating is assigned for extension limited to 30 degrees.  A 50 percent rating is assigned for extension limited to 45 degrees.

Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding.  See 38 C.F.R. § 4.14.

The Veteran's medical records show that he treats for knee pain.  However, his medical records do not demonstrate range of motion findings consistent with higher ratings.

In October 2008, the Veteran was afforded a VA examination.  He reported knee pain that he treated with medications, which provided some relief of his pain symptoms.  He reported that he was able to stand for 15 to 30 minutes and walk one to three miles.  He had stiffness when climbing stairs or squatting.  On examination, he demonstrated left and right knee flexion to 135 degrees.  No instability was noted and repetitive use resulted in no additional limitation of flexion.  The examiner also indicated that the Veteran's bilateral knee pain would not have any significant effects on his occupational activities.  

The Veteran's medical records show that in August 2014, his knee pain was stable and did not restrict his activities.  In September 2015, his knee pain remained stable.

In July 2016, the Veteran was afforded a VA examination.  He reported continued knee pain but denied any specific treatments other than pain medications.  He reported having flare-ups that made his knees feel like they were burning.  He also reported knee swelling.  On examination, he demonstrated left knee flexion to 110 degrees and extension to 0 degrees and right knee flexion to 90 degrees and extension to 0 degrees.  The examiner indicated there was no evidence of pain on weight bearing.  The examiner reported that repetitive use testing did not result in any additional functional loss or range of motion.  The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups.  The Veteran had normal 5/5 strength with no muscle atrophy.  He had normal joint stability tests.  There was also no evidence of ankylosis, a history of recurrent effusion, recurrent patellar dislocation, or a meniscal condition.  The examiner noted that the Veteran reported having a physically demanding job and that he had pain with activities, but opined that the Veteran's left and right knee disabilities did not result in unemployability.

The Board finds that the criteria to assign a 20 percent rating for the Veteran's left and right knee disabilities under Diagnostic Code 5260 have not been met.  The Veteran demonstrated flexion, at worse, limited to 90 degrees, which exceeds the 60 degree limitation, equivalent to a noncompensable rating.  As such, the Veteran is not found to meet the criteria for a 20 percent rating under Diagnostic Code 5260, which requires flexion to be limited to 45 degrees.  

Turning to limitation of extension, the Board finds that the criteria to assign a separate compensable rating under Diagnostic Code 5261 have not been met.  The Veteran consistently demonstrated full extension in his left and right knees to 0 degrees, which exceeds the 5 degree limitation, equivalent to a noncompensable rating.  As such, the Veteran is not found to meet even the criteria for a noncompensable rating under Diagnostic Code 5261, which requires extension to be limited to 5 degrees.  Similarly, as there is no evidence of instability, a separate compensable rating on that basis under Diagnostic Code 5257 is also not warranted.  

The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or 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.  Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain.  38 C.F.R. § 4.40.  Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  

Here, the VA examiners reported that the Veteran had 5/5 strength in his left and right lower extremities.  On range of motion testing, repetitive use did not further limit the Veteran's range of motion.  Furthermore, the evidence simply does not support that the Veteran's left and right knee disabilities results in findings consistent with a higher rating.  Thus, greater ratings for limitations of flexion and extension are not warranted under DeLuca.

While the Veteran has been shown to experience knee pain, the Court of Appeals for Veterans Claims (Court) has held that even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011).  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id. at 43; see 38 C.F.R. § 4.40.  Here, the Veteran consistently retained flexion and extension in excess of noncompensable ratings.  As such, there is no basis for a compensable rating under Diagnostic Codes 5260 or 5261.  To the extent that it is argued that the Veteran's range of motion is painful and therefore would merit a separate compensable rating under 38 C.F.R. § 4.59, that provision states that it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  However, here, the Veteran is currently assigned the minimum compensable ratings based on limitation of flexion.  As such, 4.59 does not mandate separate ratings.

To this end, the Veteran was assigned a 10 percent rating for his left and right knee disabilities under Diagnostic Code 5019-5260 for limitation of flexion and assigned a 10 percent rating for each, the minimum compensable rating.  While the Veteran's left and right knee disabilities are rated under the Diagnostic Code for bursitis, he did not demonstrate findings consistent with compensable ratings under other the knee Diagnostic Codes 5256, 5257. 5258, 5259, 5260, 5261, 5262, or 5263.  As such, ratings in excess of 10 percent are not warranted for the Veteran's left and right knee disabilities.


		ORDER

A rating in excess of 10 percent for a left knee disability is denied.

A rating in excess of 10 percent for a right knee disability is denied.




____________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs

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