Citation Nr: 1754582 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-26 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to increases in the "staged" (10 percent prior to September 2, 2015, 20 percent from September 2, 2015 to September 19, 2016, and 10 percent from that date) ratings assigned for left patellofemoral syndrome (PFS). 2. Entitlement to increases in the "staged" (10 percent prior to September 2, 2015, 20 percent from September 2, 2015 to September 19, 2016, and 10 percent from that date) rating assigned for right PFS. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 2002 to April 2006 and from November 2006 to October 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, continued 10 percent ratings, each, for the knee disabilities. In January 2015, a videoconference hearing was held before the undersigned; a transcript is in the record. In May 2015, the case was remanded for additional development. An (interim) October 2015 rating decision increased the ratings for each knee to 20 percent, effective September 2, 2015. A November 2016 rating decision reduced the ratings for each knee to 10 percent, effective September 19, 2016. All three "stages" of the respective ratings remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). [In August 2016, VA received the Veteran's application for entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). A review of the record found that that issue is in the process of being developed, but has not yet been adjudicated or certified to the Board, by the RO. Accordingly, the issue is not before the Board at this time.] FINDINGS OF FACT 1. Prior to September 2, 2015, the Veteran's left and right knee disabilities were each manifested by limitation of motion due to pain; compensable limitations of flexion or extension, instability, and/or subluxation were not shown. 2. From September 2, 2015 to September 19, 2016, the Veteran's left and right knee disabilities were not shown to be manifested by flexion limited to less than 25 degrees; compensable limitation of extension, instability, and subluxation were not shown. 3. From September 19, 2016, the Veteran's left and right knee disabilities have each have been manifested by motion limited due to pain; compensable limitations of flexion or extension, instability, and/or subluxation are not shown. CONCLUSION OF LAW Ratings for the Veteran's left and right knee disabilities, each, in excess of 10 percent prior to September 2, 2015, in excess of 20 percent from September 2, 2015 to September 19, 2016, and/or in excess of 10 percent from September 19, 2016 are not warranted. REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to notify was satisfied by correspondence in June 2012. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative has raised any other issues with the duties to notify and assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("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 duty to assist argument). Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). "Staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The criteria for rating knee disabilities are found at 38 C.F.R. § 4.71a, Codes 5256-5263. Under Code 5257, other knee impairment manifested by recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent (the maximum) when severe. Under Code 5260, limitation of flexion of the leg warrants a 0 percent rating when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and a maximum 30 percent rating when limited to 15 degrees. Under Code 5261, limitation of extension of the leg warrants a 0 percent rating when extension is limited at 5 degrees; a 10 percent rating when limited at 10 degrees; a 20 percent rating when limited at 15 degrees; a 30 percent rating when limited at 20 degrees; a 40 percent rating when limited at 30 degrees; and a maximum 50 percent rating when limited at 45 degrees. The normal range of motion (ROM) of the knee is from 0 degrees of extension to 140 degrees of flexion. Plate II. 38 C.F.R. § 4.71. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Code(s) for the specific joint(s) involved. When the limitation of motion is noncompensable under the appropriate Code(s), a 10 percent rating is for application for each such major joint affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Code 5003. In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Separate ratings may be assigned for a knee disability under Codes 5003 and 5257 where there is x-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. Separate ratings may be assigned where a service-connected knee disability includes both a compensable limitation of flexion under Code 5260 and a compensable limitation of extension under Code 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04. An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R. § 3.400(o)(2). Consequently, the evaluation period for consideration here is from January 2011 (a year prior to the January 24, 2012 date of claim) to the present. Factual Background The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. An August 2009 VA primary care record notes the Veteran's complaints of bilateral knee pain and his left knee giving out. He used a cane on the visit. A January 2009 MRI found both knees were normal. Physical examination during the visit found normal knees. Diclofenac and Tramadol were prescribed and bilateral hinged knee braces were ordered. A subsequent August 2009 VA physical therapy record notes that the prosthetic department mailed the Veteran two hinged knee braces. A July 8, 2011 VA primary care record notes complaints of the right knee giving way when the Veteran walked using a cane. The assessment was right knee arthralgia with a history of left knee Osgood Schlatters disease. A December 14, 2011 primary care record notes that the Veteran reported that he began using a walker because his knees were giving out more frequently in colder weather. On examination, there was no edema or muscle atrophy; he was unable to properly squat and had difficulty standing. The assessment was knee arthralgia. A March 2012 VA primary care record notes complaints of knee pain rated 7/10 and left knee buckling with a past fall. The Veteran requested a walker with a seat. The assessment was traumatic arthralgia; the physician ordered a walker and advised the Veteran to continue use of the left knee brace. A VA examination to assess the severity of the Veteran's knee disabilities was scheduled in July 2012; he did not appear. In a September 2012 statement, he reported that he was experiencing severe knee pain and was unable to walk more than five to ten feet at the time of the scheduled examination. He requested that the examination be rescheduled. On January 2013 VA knee examination, the Veteran reported persistent bilateral knee pain exacerbated by standing/sitting for longer than 10 minutes, walking more than 20 feet, and climbing stairs. He treated the pain with rest and Tylenol or Advil, and used a cane for mobility. He denied flare-ups. On examination, ROM of each knee was 0 to 90 degrees, with objective evidence of painful motion at 45 degrees flexion for each knee. He stopped repetitive use testing after two repetitions due to reported pain. Tenderness to palpation was noted bilaterally. Muscle strength and joint stability were normal. There was no evidence or history of knee surgery, a meniscal condition, or recurrent patellar subluxation/dislocation. The Veteran reported constant use of a cane for his knee condition. X-rays did not show arthritis, acute fractures, effusion, or dislocation; an ununited tibial tubercle of the right knee was noted, unchanged since 2008. The diagnosis was patellofemoral syndrome of both knees. The examiner noted that the Veteran was unemployed, but opined that the bilateral knee disability does not impact his ability to work. A May 8, 2013 VA primary care record notes complaints of left knee buckling. The Veteran's gait was antalgic and he was using a cane for ambulation. Examination did not find laxity on stress maneuvers; however, the assessment was "unstable left knee", and he was referred for orthopedic consult. On VA orthopedic surgery consult on the same day it was noted that the physician reviewed January 2013 x-rays and found that the Veteran "does not have nonunion of tibial tubercle by Osgood Schlatter disease which is a chronic tendinopathy." The physician ordered an MRI of "both knees as suggested by ortho for knee instability." [The record does not include a report of the MRI; however, the Veteran testified at the January 2015 Board hearing that the MRI did not show any pertinent abnormalities, and the Board finds that development for the MRI would therefore be pointless.] A July 2014 primary care record notes complaints of knee pain. Examination showed a sturdy gait and lower extremities without edema or muscle atrophy. The assessment was degenerative joint disease of both knees; the plan was to treat with Tylenol as required. At the January 2015 Board hearing, the Veteran testified that his knees disabilities had worsened since his last VA examination. He reported that at the January 2013 VA examination he used a cane for mobility but his VA orthopedic physician had since prescribed a walker for ambulation due to pain and instability of the knees. [Clinical records show a walker was prescribed in March 2012.] He also testified that he uses bilateral metal hinged knee braces due to knee instability. He reported that he has not worked since 2012 due to knee pain. On September 2, 2015 VA knees examination, the Veteran reported that his knee pain had progressed over the past few years. He used over-the-counter medication to treat knee pain. He also reported that his knees give way and he falls randomly; thus, he was using a rolling walker on examination. He denied flare-ups, but reported that he cannot run, squat, stand for more than 10 minutes, or walk more than 30 yards at a time. On examination, diffuse tenderness to palpation was noted all over the knee joints. The Veteran reported severe pain to "minimal pressure over the skin." On ROM testing, it was noted that the Veteran was "having a lot of pain with slight motion of the knee so that examination of range of motion and muscle strength is very unreliable at present time." The examiner noted that the Veteran kept his knees at 25 degrees flexion; his knees were not ankylosed. However, due to his complaints of severe pain, the Veteran was sent to urgent care for evaluation and treatment; he was "to be reevaluated when the pain is controlled to the degree that examination is possible." The examiner was unable to make a diagnosis. An emergency care record from the same day notes complaints of bilateral chronic knee pain. Examination found no effusion or deformity; range of motion was decreased secondary to pain; the knee was stable to stress. He used a walker to ambulate. He was advised to continue light activity and use of the walker; prescriptions included 5 days of prednisone (for inflammation) and tramadol (for pain). In a December 2015 statement, the Veteran expressed disagreement with the effective date of the assignment of the 20 percent ratings for each knee; he argued that he is entitled to 20 percent ratings for each knee since 2012 (the date his claim), rather than 2015. He wrote, "In the award amount there is no disagreement so please do not change payment at all." A May 2016 clinical record notes an assessment of bilateral knee pain; the Veteran declined x-rays. On September 2016 (fee basis) VA knees examination, the Veteran complained of worsening knee pain since 2002. He reported flare-ups described as muscle achiness and weakness, radiating pain, and limitation of ROM. On examination, ROM of each knee was 0 to 100 degrees. Pain was noted on flexion, but did not result in/cause functional loss. There was no objective evidence of crepitus, tenderness on palpation, or pain on weight-bearing in either knee. Following repetitive use testing, there was no additional loss of function or ROM in either knee. Based on examination and the Veteran's descriptions, the examiner reported that ROM following repetitive use over time is 0 to 90 degrees for each knee, limited to such extent by pain and lack of endurance. Although the examination was not conducted during a flare-up, based on the Veteran's descriptions, the examiner estimated that ROM during a flare-up is 0 to 80 degrees for both knees due to pain and lack of endurance. Muscle strength testing was 5/5 (normal) for each knee. Ankylosis and atrophy were not found. Joint stability testing was normal. There was no evidence of a meniscus condition, shin splints, recurrent patellar dislocation, stress fracture, compartment syndrome, or any other tibial or fibular impairment. The Veteran was not using an assistive device. The diagnosis was PFS. The examiner opined that the Veteran's knee condition "creates mild impairment in performing sedentary activity of employment and moderate impairment in performing physical activity of employment." Analysis The Veteran's right and left knee disabilities have each been assigned staged ratings under Code 5260 of 10 percent prior to September 2, 2015, 20 percent from September 2, 2015 to September 19, 2016, and 10 percent from September 19, 2016. He seeks increases and testified at the January 2015 hearing that he experiences bilateral knee instability. Initially, the Board notes the applicability of Codes 5003, 5256, 5258, 5259, 5262, and 5263 has been considered for both knees. However, as the evidence of record does not show that pathology or separate and distinct symptoms required for ratings under such Codes (arthritis, ankylosis, dislocation or removal of symptomatic semilunar cartilage, nonunion or malunion of the tibia or fibula, or genu recurvatum of the knees) was present during the evaluation period, the Board finds that those Codes do not have applicability in these matters (and will not be further discussed). The Board has initially considered whether for any period under consideration increased ratings may be warranted based on limitation of motion. To warrant the next higher schedular rating under Codes 5260-5261 for disability of either knee for the periods prior to September 2, 2015 or from September 19, 2016, the evidence must show flexion limited to 30 degrees, extension limited at 15 degrees, or flexion limited to 45 degrees and extension limited at 10 degrees. The evidence of record, outlined above, shows that during these periods the Veteran's right and left knee disabilities were each manifested by flexion limited to no less than 80 degrees, even during flare-up, and extension never less than to 0 degrees (i.e., full); accordingly, neither flexion nor extension was limited to a compensable degree. The maximum limitation noted is with consideration of all factors to include pain on weight-bearing and flare-ups based on the Veteran's reports; therefore, an increase based on factors such as painful motion, use, or weight-bearing is not warranted. Accordingly, prior to September 2, 2015 and/or from September 19, 2016 an increase in the ratings under Codes 5260 and/or 5261 is not warranted. For the period from September 2, 2015 to September 19, 2016, the Veteran's right and left knee disabilities were each assigned a 20 percent rating under Code 5260. To warrant the next higher rating, the evidence must show limitation of flexion to 15 degrees or limitation of extension at 10 degrees (in addition to flexion limited to 30 degrees). The record does not show such limitations; flexion is not shown to have been to less than 25 degrees, and extension was full, throughout. [Notably, in a December 2015 statement, the Veteran expressed agreement with the 20 percent ratings. Accordingly, for the period from September 2, 2015 to September 19, 2016, an increase in the ratings under Codes 5260 and/or 5261 is not warranted. The analysis turns to consideration of the criteria for rating based on instability or subluxation. The Board acknowledges the Veteran's reports of the sensation of bilateral knee instability on several occasions during the appeal period. See December 14, 2011 clinical record (noting his use of a walker due to reported frequent giving way of both knees), March 2012 clinical record (noting his request for a walker), May 2013 clinical record (complaint of left knee buckling), and the January 2015 Board hearing (testimony regarding bilateral knee instability). However objective clinical evidence shows that throughout, both knees have been stable and without subluxation, including on January 2013 and September 2016 VA examinations (joint stability testing was not performed on September 2015 VA examination, but that the Veteran's knees were found to be stable on emergency care evaluation on the day of evaluation). As is noted above, in hearing testimony the Veteran indicated that a 2013 MRI (ordered for reports of instability) showed no abnormalities. See January 2015 Board hearing transcript. A July 2014 clinical record notes that the Veteran's gait was sturdy. And, on the most recent, September 2016, VA examination it was noted that the Veteran did not use any assistive device to ambulate. Accordingly, a separate rating under Code 5257 for recurrent subluxation or instability is not warranted. In light of the foregoing, the Board finds that the preponderance of the evidence is against these claims. Accordingly, the benefit of the doubt rule does not apply. The appeal in these matters must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Ratings for the Veteran's left and right knee PFS, each, in excess of 10 percent prior to September 2, 2015 and from September 19, 2016, and in excess of 20 percent from September 2, 2015 to September 19, 2016 are denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs