Citation Nr: 1745536 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 10-37 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for patellofemoral syndrome of the left knee. 2. Entitlement to an evaluation in excess of 10 percent for patellofemoral syndrome of the right knee. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Edelstein, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2004 to December 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously before the Board in March 2014 and November 2016 when they were remanded for further development. FINDINGS OF FACT 1. Throughout the appeal period, at worst, right knee flexion was to 110 degrees, left knee flexion to 90 degrees. Extension was normal in both knees. 2. Throughout the appeal period, the Veteran's left knee disability included slight instability. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for service-connected patellofemoral syndrome of the right knee have not been met. 38 U.S.C.A. §§ 1155 , 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1 , 4.2, 4.7, 4.10, 4.71a, Diagnostic Codes 5260 (2016). 2. The criteria for an evaluation in excess of 10 percent for service-connected patellofemoral syndrome of the left knee have not been met. 38 U.S.C.A. §§ 1155 , 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1 , 4.2, 4.7, 4.10, 4.71a, Diagnostic Codes 5260 (2016). 3. The criteria for a 10 percent rating, but no higher, for instability of the left knee have been met for the entire appeal period. 38 U.S.C.A. §§ 1155 , 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1 , 4.2, 4.7, 4.10, 4.71a, Diagnostic Codes 5257 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim 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). The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Increased Evaluation for Knee Disabilities Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is a guide for the evaluation of disability resulting from diseases and injuries experienced as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. While the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 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). Weakness is as important as limitation of motion, and a part which 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. See 38 C.F.R. § 4.45. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's right and left knee disabilities are each evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260, for limitation of flexion. DC 5260 provides that flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degree warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). Under DC 5261, a 0 percent rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. A claimant who has arthritis and instability of the knee may be rated separately under DC 5003 and 5257. Evaluation of a knee disability under both of those diagnostic codes does not amount to pyramiding. However, a separate rating must be based on additional compensable level of disability. 38 C.F.R. § 4.14; VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994). Under DC 5257, which contemplates recurrent subluxation or lateral instability of the knees, a 10 percent rating is warranted for slight impairment, a 20 percent rating is warranted for moderate impairment, and a 30 percent rating is warranted for severe impairment. 38 C.F.R. § 4.71a, DC 5257. For VA purposes, normal extension and flexion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71a, Plate II. The Veteran filed a claim for increased rating in February 2009. She was afforded a VA examination for her knees in April 2009 during which the examiner reviewed her treatment history. The Veteran reported that her knee pain has increased and she now has difficulty walking. She reported constant pain and stiffness and her knees will give out occasionally, perhaps twice a week. She reported fatigability with standing or walking greater than 10 minutes. She was not currently working and reportedly could only hold her 3 year old child while sitting; and could hold her infant only 5-10 minutes while standing. She was currently using Naproxen; she used knee braces previously but they wore out. The Veteran reported flare-ups with changes in weather or activity level. She reported that with flare-ups she "can't do anything." On physical examination, there was genu valgus of 10 degrees in both knees. The Veteran was noted to have a slow gait, guarding as objective evidence of painful motion. There was no evidence of edema, effusion, instability, weakness, tenderness, redness, heat or abnormal movement. Range of motion, active and passive, of the right knee was from 0 to 120 degrees; left knee, 0 to 110. There was no laxity noted on either knee; Lachman's and McMurray's were negative. The examiner noted the Veteran's reports of pain, fatigue, weakness and lack of endurance, but said they do not additionally limit joint function. X-rays from July 2007 showed degenerative changes of both patellae. On VA examination in October 2011, the Veteran reported increased pain since the 2009 examination, left worse than right. She described the pain as constant aching, treated with stretching, heat and ice. She had been provided Naproxen but avoids taking it unless the pain is significant. She uses that approximately once a week and uses Tylenol other days. She was attending school full-time, but uses elevators and parks closer to buildings because of knee pain. She noted increased pain with weather changes. Range of motion of the right knee was flexion to 110 degrees, with pain at 110; extension to 0, with no objective evidence of pain. Left knee flexion was to 115 degrees, with pain at 90 degrees; extension to 0, with no objective evidence of pain. After repetitive-use testing, right knee flexion was to 110 degrees, extension to 0; left knee flexion was to 115 degrees, extension to 0. The examiner noted the Veteran did not have additional limitation of motion in either leg following repetitive-use testing. The examiner noted less movement than normal, excess fatigability, pain on movement, swelling, and interference with sitting, standing and weight-bearing on both sides. There was tenderness on both knees. Muscle strength testing was 4/5 for both knees. Joint stability testing was normal on both knees. The examiner noted that the Veteran's knee disabilities would impact her ability to work in that she would less likely be able to perform a job that required regular standing, but would likely be able to perform a sedentary job. Pursuant to the Board remand, the Veteran was afforded a new examination in January 2017. The examiner noted the diagnosis of bilateral patellofemoral pain syndrome with reported flare ups and functional loss. Upon examination, the examiner noted that range of motion as normal, 0 to 140 degrees in both knees. The examiner characterized range of motion as normal for both knees with crepitus and subjective complaints of pain. There was no reduction of range of motion on repetitive testing and muscle strength was 5/5 bilaterally. There was no ankylosis or atrophy, no instability or subluxation. The examiner noted the regular use of a knee brace for stability. VA treatment records include complaints of knee pain, left worse than right, and instability. In September 2010, the Veteran was noted to be wearing a left knee brace. In July, October and December 2012 and March 2013, she complained of persistent knee pain and was wearing a left knee brace. In September 2013, the Veteran complained on bilateral knee pain, 9/10. In November 2013, pain medication and knee braces were provided. In August 2014, the Veteran was provided with a hinged knee brace, but the records do not indicate for which knee. Based on a review of the record, the Board finds that an increased rating is not warranted for either knee for limitation of flexion under DC 5260. At no time during the appeal period has actual or functional limitation of flexion been to 30 degrees in either knee. At worst, right knee flexion was to 110 degrees, left knee flexion to 90 degrees. A separate rating is not warranted for either knee under DC 5261. At no time during the appeal period has actual or functional limitation of extension been to 5 degrees. Extension has been normal for both knees for the entire appeal period. The Board finds that a separate rating is warranted under DC 5257 for slight instability in the left knee for the entire appeal period. Although VA examinations include normal stability testing, the examiners noted the Veteran's use of a brace and VA treatment records confirm that the Veteran had fairly consistent use of a left knee brace. A separate rating is not warranted for the right knee under DC 5257 as the evidence does not include references to use of a brace for the right knee. Although some treatment records that reference use of a brace do not identify which knee, the records that are more specific reference only use of a left knee brace. In considering the applicability of other diagnostic codes, the Board finds that DC 5256 (ankylosis), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptoms of removal of semilunar cartilage), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum) are not applicable in this instance, as the medical evidence does not show that the Veteran has any of those conditions. The Board has also considered the Veteran's lay statements that are her knee disabilities worse than currently evaluated. She is competent to report symptoms; however, she 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 disabilities 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 the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. Thus, the Board finds that the preponderance of the evidence is against increased ratings under DC 5260 for either knee, but supports assignment of a separate 10 percent rating for the left knee under DC 5257 for the entire appeal period. ORDER Entitlement to an evaluation in excess of 10 percent for patellofemoral syndrome of the left knee is denied. Entitlement to an evaluation in excess of 10 percent for patellofemoral syndrome of the right knee is denied. Entitlement to a separate 10 percent rating for left knee instability is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs