Citation Nr: 18123951
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 13-04 512
DATE:	August 3, 2018
ORDER
Entitlement to a disability rating of 20 percent for limitation of flexion of the left knee is granted, as is a separate rating of 10 percent for limitation of extension of the left knee, effective November 28, 2017, and subject to the law and regulations governing the award of monetary benefits.  
FINDINGS OF FACT
1.   On November 28, 2017, the Veteran was noted on VA examination to demonstrate left knee flexion limited to 30 degrees.
2.   On November 28, 2017, the Veteran was noted on VA examination to demonstrate left knee extension limited to 10 degrees.
CONCLUSIONS OF LAW
1.   Resolving reasonable doubt in favor of the Veteran, the criteria for a higher rating of 20 percent, but no higher, for limitation of flexion of the left knee have been approximated.  38 U.S.C. § §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260.
2.   Resolving reasonable doubt in favor of the Veteran, the criteria for a separate rating of 10 percent, but no higher, for limitation of extension of the left knee have been approximated.  38 U.S.C. § §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5261.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran appellant had active service in the United States Marine Corps from July 1999 to August 2003, including service in Iraq.  This case originally came before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama that denied the claim on appeal.
In May 2016, a Travel Board hearing was held at the RO before the undersigned Veterans Law Judge.  The transcript of that Travel Board hearing is associated with the claims file.  The Board subsequently remanded the case for additional development in September 2017; the case has now been returned to the Board for appellate review.
The pertinent evidence of record for the appeal period in question consists of the Veteran's statements and hearing testimony in support of his claim; the reports of VA medical examinations conducted in January 2011, June 2016, and November 2017; and VA medical treatment records dated from 2008 to 2017. 
The Veteran was afforded a VA knee examination in January 2011; he complained of constant aching pain, weakness, stiffness, giving way, locking and lack of endurance.  He denied experiencing instability, episodes of dislocation, subluxation and effusion.  He did not report having flare-ups.  Use of a brace was noted.  On physical examination, the Veteran exhibited left knee flexion to 115 degrees, with end-of-range pain and left knee extension to 0 degrees with end-of-range pain.  On repetitive range of motion, flexion and extension remained the same.  There was no crepitus or swelling.  The left knee was stable to varus and valgus stressing. 
The Veteran underwent another VA medical examination in June 2016.  The Veteran exhibited left knee flexion to 120 degrees and left knee extension to 0 degrees; pain was noted but the examiner stated that it did not cause any functional loss.  There was no evidence of pain with weightbearing.  Crepitus was present.  There was no additional loss of motion with repetitive use testing.  The examiner was unable to comment on whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time without resorting to mere speculation because the Veteran was not being examined immediately after repetitive use over time.  Additional contributing factors of disability included interference with lateral movement.  Muscle strength testing was 5/5 without any muscle atrophy.  There was no history of lateral instability or recurrent effusion.  Joint stability testing was noted to show instability, but a quantification was not recorded.  
The Board's September 2017 remand instructions stated that the Veteran was to be scheduled for an examination of his left knee.  The examination was found to be necessary in order to obtain range of motion findings referenced by the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016) as required by the final sentence of 38 C.F.R. § 4.59.  The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint."  The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59.  
The Veteran was afforded a VA medical examination in November 2017; he said that he had a dull ache all the time in his left knee and that any lateral movement gave him sharp pain.  He also stated that the left knee felt weak as the day went on and that it got worse after a long drive.  He denied having flare-ups.  The Veteran reported giving up coaching basketball because he had left knee pain with lateral movement and prolonged standing.  He said he was able to coach football and baseball with use of a knee brace.  On physical examination, the Veteran exhibited left knee flexion from 10 to 70 degrees and left knee extension to 10 degrees; pain was noted but the examiner stated that it did not cause any functional loss.  (This testing was active and non-weightbearing.)  On repetitive range of motion, flexion and extension remained the same.  Right knee range of motion was normal (0 to 140 degrees).  With weightbearing, the Veteran exhibited zero to 30 degrees of motion in the left knee.  Passive range of motion was from zero to 80 degrees.  There was no crepitus.  There was evidence of pain with weightbearing.  The examiner stated that pain, weakness, fatigability or incoordination did not significantly limit the Veteran’s functional ability with repeated use over time.  Muscle strength testing was 5/5 but muscle atrophy of 1.5 centimeters was present as compared to the right knee.  There was no history of recurrent subluxation, lateral instability or recurrent effusion.  The left knee was stable to joint stability testing.  The examiner stated that the Veteran’s status after the pre-service1996 lateral meniscectomy was that the knee was asymptomatic and without residuals.  The examiner noted that functionally the left knee would cause limitations with prolonged standing, stairs or activities with lateral movements.  The examiner also noted that the Veteran appeared to favor his left knee when walking and that he had a slight limp.  
VA treatment records dated from 2008 to 2017 reflect ongoing complaints of left knee pain.  A December 2010 x-ray report reflects no evidence of a fracture, subluxation or dislocation.  There was no soft tissue swelling or joint effusion. 
In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim.  The appellant prevails in either event.  However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.
Each disability must be considered from the point of view of the Veteran working or seeking work.  See 38 C.F.R. § 4.2.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.
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 portrays the anatomical damage and the functional loss with respect to all of these elements.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995). 
The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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.  
Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities.  38 C.F.R. § 4.45.  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis).  However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body.  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).
A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made.  See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.
In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected left knee disability at issue.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  Moreover, the Board finds that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the left knee disability.
The Veteran's left knee disability has been assigned a 10 percent rating for left anterior cruciate ligament tear with postsurgical changes with limitation of motion and pain, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260.  He testified at his May 2016 Travel Board hearing that he had problems with flexion and extension.  He said that there was significant atrophy in the area of the calf muscle.  The Veteran stated that he did not think that the VA examination results were accurate.
Under Diagnostic Code 5003, arthritis, degenerative, substantiated by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved.  When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  
With X-ray evidence of involvement of 2 or more major joints, with occasional incapacitating episodes, a 20 percent rating will be assigned.  With X-ray evidence of involvement of 2 or more major joints, a 10 percent rating will be assigned.  The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion.  Diagnostic Code 5003, Note (1).  The knee is considered to be a major joint.
Diagnostic Code 5257 provides a 10 percent rating for mild recurrent subluxation or lateral instability.  A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability.  A 30 percent rating is assigned for severe recurrent subluxation or lateral instability.  
Diagnostic Code 5259 provides a maximum 10 percent rating for removal of the semilunar cartilage.
Diagnostic Code 5260 provides that flexion of the leg limited to 45 degrees warrants a 10 percent rating.  Flexion limited to 30 degrees warrants a 20 percent rating.  Flexion limited to 15 degrees warrants a 30 percent rating. 
Under Diagnostic Code 5261, extension of the leg limited to 10 degrees warrants a 10 percent rating.  Extension limited to 15 degrees warrants a 20 percent rating.  Where extension is limited to 20 degrees, a 30 percent rating is assigned.  Where extension is limited to 30 degrees, a 40 percent rating is assigned.  Where extension is limited to 45 degrees, a 50 percent rating is assigned. 
VA's General Counsel has issued multiple opinions which are also relevant to the rating of the Veteran's left knee disability.  First, a disability rated under Diagnostic Code 5257 may also be rated separately under Diagnostic Codes 5260, limitation of flexion of the knee, and Diagnostic Code 5261, limitation of extension of the knee.  See VAOGCPREC 23- 97.  In addition, separate disability ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint without violating the provisions against pyramiding at 38 C.F.R. § 4.14.  VAOPGCPREC 9-04. 
Normal range of knee motion is 140 degrees of flexion and zero degrees of extension.  38 C.F.R. § 4.71, Plate II.
The 10 percent rating currently assigned for the Veteran's left knee disability is based on limitation of motion/flexion (under Diagnostic Code 5260).  To warrant an increase in the rating during the appeal period, the evidence would have to show limitation of knee flexion to 30 degrees, limitation of extension to 10 degrees, instability, dislocated semilunar cartilage, or symptomatic removal of semilunar cartilage.  Here, the Veteran exhibited a limitation of extension of 10 degrees during the VA examination of November 28, 2017.  He also exhibited limitation of flexion to 30 degrees during that examination.  Thus, a 10 percent evaluation for limitation of extension is warranted as of that date, as well as a 20 percent evaluation for limitation of flexion.  In so finding, the Board notes that the range of motion findings noted in the January 2011 and June 2016 examinations are in stark contrast with the findings noted in the November 2017 VA examination report.  Thus, as the findings do not more nearly approximate the findings noted in 2017, the Board declines to infer that the functional impairment associated with the knee was probably (as opposed to a remote possibility) the same back then as it was in 2017.
Higher ratings are not warranted because the Veteran does not have extension limited to 15 degrees or more and he does not have flexion limited to 15 degrees or less.  For the entire appeal period, the Veteran’s documented symptoms of pain on motion and limitation of motion are encompassed in the ratings assigned.
However, the Veteran's left knee disability does not reflect the presence of ankylosis, recurrent subluxation or instability, dislocated cartilage, impairment of the tibia and fibula, or genu recurvatum.  Consequently, separate ratings pursuant to Diagnostic Codes 5256, 5257, 5258, 5262, and 5263 are not warranted.  The Board notes that the Veteran has already been awarded a separate evaluation for left knee surgical scarring, but he has not disagreed with the assigned evaluation. 
In summary, the Veteran's service connected left knee disability does not warrant a rating higher than 10 percent prior to November 28, 2017.  Pursuant to this decision, a 20 percent rating is assigned for the limitation of flexion, effective November 28, 2017.  In addition, a separate evaluation of 10 percent is assigned for limitation of extension, effective November 28, 2017.  Thus, this is a situation in which staged ratings have been assigned during the appeal period.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).
Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).  See also Yancy v. McDonald, 27 Vet. App. 484, 494 (2016).
 
TANYA SMITH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Hannan, Counsel 

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