Citation Nr: 1752788 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 09-11 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome with osteoarthritis. 2. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome with osteoarthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran had active military service from March 1997 to September 2001. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted service connection for left iliotibial band syndrome and assigned a noncompensable rating effective June 20, 2006; and continued a noncompensable rating for service-connected right knee patellofemoral pain syndrome. The Veteran appealed for compensable evaluations. In September 2012, the RO recharacterized the left iliotibial band syndrome and right patella femoral syndrome as bilateral patellofemoral syndrome with osteoarthritis changes, and assigned a 10 percent rating effective June 20, 2006, the date of the claims. In December 2013, the RO assigned separate 10 percent ratings for right knee patellofemoral syndrome with osteoarthritis changes, and left knee patellofemoral syndrome with osteoarthritis changes, with the effective date for each as November 26, 2013. For both the September 2012 and December 2013 RO decisions, as the ratings assigned did not represent a full grant of the benefits sought, the case remained in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). In May 2014, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge of the Board. The transcript of that hearing is of record. In June 2014, the Board remanded the claims for additional development. In January 2016, the RO granted effective dates of June 20, 2006 for both left and right knee patellofemoral syndrome with osteoarthritis changes and also granted service connection for right knee instability and left knee instability, with each knee evaluated as 10 percent disabling. This matter was before the Board in June 2016 and most recently in April 2017 where the Board again remanded the claims for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran's left knee patellofemoral syndrome with osteoarthritis was not productive of actual or functional flexion limited to 30 degrees, actual or functional extension limited to 5 degrees, recurrent subluxation, lateral instability, ankylosis, dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint, impairment of the tibia and fibula, or genu recurvatum. 2. Throughout the entire appeal period, the Veteran's right knee patellofemoral syndrome with osteoarthritis was not productive of actual or functional flexion limited to 30 degrees, actual or functional extension limited to 5 degrees, recurrent subluxation, lateral instability, ankylosis, dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint, impairment of the tibia and fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of flexion of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5260 (2017). 2. The criteria for a rating in excess of 10 percent for limitation of flexion of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran, nor her representative has raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 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). The Board does note that in September 2017, the Veteran submitted a statement stating that the June 2017 examination was inadequate as it was provided at a non-VA facility and actual measurements were not taken by the examining nurse. See Correspondence received September 2017. Contrary to the Veteran's assertions, the Board finds the June 2017 examination adequate for rating purposes as range of motion measurements were documented and clinical notes contain Veteran's reported symptoms at the time. For purposes of this decision, the 2017 VA examination conducted by a VA contractor and qualified examiner are therefore relied upon by the Board. Accordingly, the Board finds that VA has satisfied its duty to assist. A review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Under these circumstances, the Board concludes that appellate review may proceed without prejudice to the Veteran. II. Initial 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. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). With the initial rating assigned with the award of service connection for a disability, "staged" ratings to reflect distinct periods when different levels of impairment were shown are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). When determining the severity of musculoskeletal disabilities, which are at least partly-rated on the basis of range of motion, VA must also consider the extent the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated due to the extent of pain/painful motion, limited or excess movement, weakness, incoordination, and premature/excess fatigability, etc., particularly during times when symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995), see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Knee Disability The Veteran is currently assigned a separate 10 percent evaluation for left knee patellofemoral syndrome with osteoarthritis changes and right knee patellofemoral syndrome with osteoarthritis changes, effective June 20, 2006, under Diagnostic Codes (DC) 5003-5260, indicating degenerative arthritis rated on the basis of limited motion (flexion). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved (here, DC 5260 or 5261 for the knees). If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003. Under Diagnostic Code 5260, limitation of flexion of the leg at the knee is rated at 10 percent if limited to 45 degrees, at 20 percent if limited to 30 degrees, and at 30 percent, which is the maximum evaluation available, if limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under Diagnostic Code 5261, limitation of extension of the leg at the knee is rated at 0 percent if limited to 5 degrees, at 10 percent if limited to 10 degrees, 20 percent if limited to 15 degrees, at 30 percent if limited to 20 degrees, at 40 percent if limited to 30 degrees, and at 50 percent if extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Normal range of knee motion is from 0 degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. In addition, VA regulations provide that "pyramiding," or evaluation of the same disability under various diagnoses, is to be avoided. 38 C.F.R. § 4.14. VA has specifically found, however, that limitation of motion of the knee and instability of the knee are not duplicative or overlapping conditions, and that a claimant who has both arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97 (July 1997). Separate ratings must be based on additional disability. Under Diagnostic Code 5257, a 10 percent disability rating is assigned for slight recurrent subluxation or lateral instability. A 20 percent disability rating is warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. In the present case, the Veteran received four VA examinations during the appeal period. A September 2012 VA examination report reflects normal range of motion of both knees with flexion to 140 degrees or greater and extension 0 degree. There was no objective evidence of painful motion. Joint stability tests were found normal with no evidence of recurrent subluxation or lateral instability. In November 2013, on range of motion testing, the Veteran demonstrated right knee flexion to 115 degrees, left knee flexion to 100 degrees, and extension to 0 degrees for each knee. The examiner indicated less movement than normal, pain on movement, weakness, swelling, and instability for both knees. Joint stability tests were found normal. A November 2015 VA examination report reflects she demonstrated flexion to 130 degrees and extension to 0 degrees on each knee. Although outside of normal range, the examiner indicated the reason that the range was normal for the Veteran as "stocky habitus limits flexion". There was no functional impairment or additional limitation of motion indicated. Joint stability tests were found normal with no evidence of recurrent subluxation or lateral instability. A June 2017 examination report reflects "all normal" range of motion measurements where the Veteran demonstrated flexion to 140 degrees. The examiner indicated that pain was noted on flexion, but no functional loss resulted. There was also no additional limitation of motion following repetitive testing. Joint stability tests were found normal with no evidence of recurrent subluxation or lateral instability. In view of the above, the Board finds that the Veteran is adequately compensated by the assigned 10 percent evaluation based on limitation of flexion, and higher ratings for her bilateral knee disorders are not warranted. At no point has the Veteran been found to have limitation of flexion of the knee to 30 degrees, which is required for a 20 percent rating under DC 5260. In fact, as reflected in examinations of 2012, 2015 and 2017, she consistently demonstrated normal range of motion of the knees. The Board observes that measurements were outside of normal range in one examination of 2013, but even then flexion was limited, at worst, to 115 degrees for the right knee and 100 degrees for the left knee. The objective evidence of record fails to show flexion limited to 30 degrees or less, even with considering functional loss. Thus, a rating higher than 10 percent is not warranted. See 38 C.F.R. § 4.71a, DC 5260. The evidence also does not support a separate rating under DC 5261 as the Veteran has not shown at any time to have limitation of extension of the knees. Thus, DC 5261 is not for application here. Likewise, the Board finds DC 5256 not applicable here as ankylosis of the knee has not been shown at any time, and DC 5262 (impairment of the tibia and fibula) and DC 5263 (genu recurvatum) not for application as the evidence does not show that the Veteran had any of these manifestations. The Board does note that the Veteran is currently separately rated at 10 percent for slight instability of the left and right knee associated with her patellofemoral syndrome with osteoarthritis changes assigned under DC 5003-5257. But, the evidence simply does not support a rating higher than the already assigned 10 percent evaluation. There is no evidence indicating moderate recurrent subluxation or lateral instability of the knees. In fact, the examinations of record suggest an improvement with normal findings for joint stability tests. As the record does not show that the Veteran has had instability of the knee in moderate degree at any time during the appeal period, a rating in excess of 10 percent under DC 5257 is not warranted. 38 C.F.R. § 4.71a, DC 5003-5257. Lastly, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, increased ratings for the knee disorders are not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms were supported by pathology consistent with the 10 percent rating assigned for the entire appeal period. In this regard, the Board observes that the Veteran's complaints of pain and limitations due to pain, and reports thereof, are contemplated in the 10 percent presently assigned. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Specifically, even when considering the effect of the Veteran's pain and other functional loss, she still demonstrated range of motion following repetitive use of flexion to well in excess of the degree required for a higher rating. Accordingly, the Board concludes that evaluations in excess of 10 percent for the left knee patellofemoral syndrome with osteoarthritis changes and right knee patellofemoral syndrome with osteoarthritis changes are not warranted for the entire appeal period. There is no reasonable doubt to be resolved in this matter. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER For the entire appeal period, an initial rating in excess of 10 percent for left knee patellofemoral syndrome with osteoarthritis is denied. For the entire appeal period, an initial rating in excess of 10 percent for right knee patellofemoral syndrome with osteoarthritis is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs