Citation Nr: 18131226
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 16-00 640
DATE:	August 31, 2018
ORDER
A rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee is denied.
FINDINGS OF FACT
1.  The Veteran had active duty service from February 2004 to February 2005, June to December 2008, and from February 2009 to May 2012; he has been in receipt of a 100 percent disability rating based on individual unemployability since February 2014.
2.  The right knee disability has been manifested by subjective complaints of pain, swelling, instability, and painful motion; objective findings include X-ray evidence of arthritis, reduced range of motion, pain on range of motion, and no instability.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for DJD of the right knee have not been met.  38 U.S.C. §§ 1155, 5107(a), 5107A (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260-5003 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a procedural matter, the Veteran executed a Power of Attorney for a private attorney in January 2016.  In August 2016, he appointed the Disabled American Veterans (DAV) as his representative.  To date, he has not revoked the appointment of the DAV.  
Under VA law, only one organization, agent, or attorney will be recognized at one time in the prosecution of a particular claim. See 38 C.F.R. § 14.631 (e)(1).  As such, the Board recognizes the DAV as the Veteran’s current representative unless or until a subsequent representative or attorney is appointed.
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  
The right knee disability is rated under DC 5260; however, the Board will consider all potentially relevant diagnostic codes. In order to warrant a rating in excess of 10 percent, the medical evidence must show any of the following:
•	ankylosis of the knee with a favorable angle in full extension or in slight flexion between 0 and 10 degrees (30% under DC 5256);
•	moderate recurrent subluxation or lateral instability (20% under DC 5257);
•	dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint (20% under DC 5258);
•	flexion of the knee limited to 30 degrees (20% under DC 5260);
•	extension of the knee limited to 15 degrees (20% under DC 5261);
•	impairment of the tibia or fibula with a moderate knee disability (20% under DC 5262); or
•	X-ray evidence of degenerative arthritis with noncompensable limitation of motion objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion and involving 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations (20% under DC 5003).
First, the Veteran has not alleged and evidence has not shown ankylosis (defined as a fixation of the joint) of the right knee.  Similarly, no impairment of the tibia or fibula, or genu recurvatum has been alleged or shown during examinations.  As such, any rating under DCs 5256, 5262, and 5263 is not warranted.
Next, a higher evaluation under DC 5003 is not warranted as the involvement of the Veteran’s right knee is a single joint, and DC 5003 requires involvement of 2 or more joints, either major or minor, for a 20 percent evaluation. Accordingly, a higher evaluation under DC 5003 is not warranted in this case
Further, the Veteran’s right knee limitation of motion does not support a higher rating.  Specifically, in an October 2015 VA examination, flexion was reported as 0 to 130, and extension at 130 to 0.  A February 2013 VA examiner noted right knee flexion at 130, with no limitation of right knee extension, and no additional limitation of motion due to pain.  
A review of the clinical records showed no instances in which flexion or extension were limited sufficient to warrant a higher rating.  Most recently, a June 2018 VA medical record showed no limitation of motion for flexion or extension, although some pain on movement.  As such a rating in excess of 10 percent under DCs 5260 and 5261 is not warranted by the evidence.
As for DCs 5258 and 5259, the medical evidence shows that the Veteran underwent a right knee meniscectomy.  However, there is no evidence that there is semilunar dislocated cartilage.  Therefore, a rating in excess of 10 percent under DC 5259 is not warranted.
While the highest schedular rating under DC 5259 is 10 percent, the Veteran may warrant a separate compensable rating for symptomatic removal of cartilage, so long as each rating encompasses different symptoms.  His current rating encompasses painful motion; therefore, pain alone is not sufficient for a separate rating under DC 5259.  He has not claimed, nor has evidence shown, frequent or infrequent episodes of locking.  Neither the February 2013 nor the October 2015 VA examiners found joint effusion, or that there was residual symptomatic pain separate from that for which he is already compensated.  As such, a separate compensable rating under DC 5259 is not warranted.
Next, the Veteran has claimed during VA examinations, SSA evaluations, and VA medical appointments that he has instability, specifically that he has the sensation of his knee giving out, although he has not specifically claimed that it does so.  Further, he has been prescribed and occasionally wears a right knee brace for instability. 
However, in an October 2015 VA examination, the examiner identified no instability and no history of recurrent subluxation or lateral instability.  Similarly, during the February 2013 VA examination, his joint stability, posterior stability, medial-lateral stability, were all found to be normal, and no history of recurrent subluxation was found.  
The clinical records reflect that the Veteran was prescribed a knee brace by the VA in December 2013, but the goal was to eliminate or reduce pain, not instability.  VA treatment records in August 2016 showed that his knee was stable, and no VA treatment record in 2018 noted any instability.  
As such, while there are some subjective complaints of instability, the preponderance of the objective medical evidence weighs against a finding of instability or subluxation.  Objective testing has continually found that his right knee is stable.  
More probative weight is given to the medical evidence finding his knee is stable, rather than his subjective complaints, as multiple examiners and physicians during the appeal period made the same findings.  As such, a separate or higher rating under DC 5257 is not warranted and the appeal is denied.
The Board has also considered the Veteran’s lay statements that his disability is worse.  While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. 
Such competent evidence concerning the nature and extent of the Veteran’s right knee disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated.  
Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value.  
As such, these records are more probative than the Veteran’s subjective evidence of complaints of increased symptomatology.  In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied.
Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not 
 
required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
 
L. HOWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Brendan A. Evans, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

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