Citation Nr: 1804283 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 11-16 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for chondromalacia patellae with painful motion of the right knee (right knee disability). 2. Entitlement to an initial rating higher than 10 percent for chondromalacia patellae with painful motion of the left knee (left knee disability). 3. Entitlement to an initial rating higher than 10 percent for right knee patellar subluxation. 4. Entitlement to an initial rating higher than 10 percent for left knee patellar subluxation. 5. Entitlement to a compensable rating for patellar subluxation of the right knee and the left knee prior to April 26, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2001 to March 2005, and January 2008 to March 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which among other things granted service connection for patellofemoral syndrome of the right and left knee, each rated 10 percent disabling. In November 2010 the Veteran filed a notice of disagreement with the initial rating assigned, was issued a statement of the case in April 2011, and in June 2011 perfected his appeal to the Board. In March 2013, the RO granted service connection for patellar subluxation of the right knee and the left knee with separate evaluations of 10 percent for each knee, effective April 26, 2012. In May 2017, the Board remanded the claim for new VA examinations to determine the current severity of the Veteran's right and left knee disabilities, and to obtain updated private and VA treatment records. Finding substantial compliance with the remand directives as will be discussed further, the appeal is now properly before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall). FINDINGS OF FACT 1. Throughout the appeal period, symptoms of the Veteran's service-connected right knee disability did not more nearly approximate limitation of flexion to 30 degrees or compensable limitation of extension, to include consideration of flare-ups. 2. Throughout the appeal period, symptoms of the Veteran's service-connected left knee disability did not more nearly approximate limitation of flexion to 30 degrees or compensable limitation of extension, to include consideration of flare-ups. 3. The Veteran's right knee patellar subluxation was manifested by at most slight, but not moderate or severe, lateral instability, and was not factually ascertainable prior to April 26, 2012. 4. The Veteran's left knee patellar subluxation was manifested by at most slight, but not moderate or severe, lateral instability, and was not factually ascertainable prior to April 26, 2012. CONCLUSIONS OF LAW 1. The criteria for an increased initial evaluation in excess of 10 percent for service-connected right knee disability have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5260. 2. The criteria for an increased initial evaluation in excess of 10 percent for service-connected left knee disability have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. The criteria for a separate initial rating in excess of 10 percent for right knee lateral subluxation have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5257. 4. The criteria for a separate initial rating in excess of 10 percent for left knee lateral subluxation have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5257. 5. The criteria for a compensable rating for right and left knee lateral subluxation prior to April 26, 2012, have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93. In the instant case, VA provided adequate notice of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence he was to provide, what part VA would attempt to obtain, and how disability ratings and effective dates are determined in a letter sent to the Veteran in December 2009. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board remanded this case for further development to obtain any outstanding VA and/or private facility treatment records that pertain to his knee disabilities since August 2014; and to afford the Veteran a VA examination to determine the severity of his service connected left and right knee disabilities. The remand included a directive that the VA examiner ensure the examination report is consistent with 38 C.F.R. § 4.59 and include range of motion testing of each knee, including active, passive, weight bearing and non-weight bearing; include the results following repetitive motion testing; and note whether there is any functional loss. The remand also directed the examiner to express an opinion on whether pain could significantly limit functional ability during flare-ups in accordance with DeLuca v. Brown, 8 Veteran. App. 202, 206 (1995). The Board finds that all necessary development has been accomplished, as June 2015 MRI results from a private radiologist and Dallas VAMC treatment records from December 2014 to May 2017 have been obtained; and the Veteran was afforded a VA examination as to the severity of his knees in August 2017. A September 2017 disability benefits questionnaire relating to the knees is also of record. For the reasons stated below, these documents together are adequate to decide the claims and therefore complied with the Board's remand instructions and VA's duty to assist. Therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records are associated with the claims file. Neither the Veteran nor his representative has raised any other issues with regard to the duty to notify or duty to assist. 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). II. Analysis The Veteran has asserted that a higher evaluation is warranted because of the degree of pain and physical limitations he endures on a daily basis, and because of the restrictions of future employment that his injury and pain cause. He has stated that his knees have continuous pain, cracking/popping, weakness, and that they buckle or give way. In May 2013, he stated that he suffers from occasional "locking" of the knee, and some shakiness and trouble rising from a seated or lower position. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). For VA compensation purposes, normal range of motion for the knee is flexion to 140 degrees and extension to zero degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is ten percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, DC 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. Id., DC 5261. VA General Counsel has also held that separate ratings may be assigned under DC 5260 and DC 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-2004 (Sept. 17, 2004). Because ratings may be separately assigned for limitation of flexion and limitation of extension, the Board will consider both Diagnostic Codes. DC 5257 pertains to other impairment of the knee involving recurrent subluxation or lateral instability and provides a 10 percent rating for slight impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, DC 5257. The terms slight, moderate, and marked as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. VA General Counsel has held that separate ratings may be assigned for arthritis and instability under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97 (July 1, 1997). The criteria for evaluating degenerative arthritis are set forth at 38 C.F.R. § 4.71a, DC 5003. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, 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 diagnostic 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, DC 5003. In the absence of limitation of motion, a 10 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Id. The 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id., Note 1. In addition, the 20 percent and 10 percent ratings based on x-ray findings will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024. Id. , Note 2. Treatment records from September 2010 show the Veteran underwent an MRI after complaining of "popping" in his knees after walking for a distance. The MRI found that the Veteran's anterior and posterior cruciate ligaments were intact as were the medial collateral ligament and lateral collateral ligamentous complex. Small joint effusion was noted, and significant irregular chondral defect of the patella involving the medial and lateral facets with significant loss of cartilage of the patella most pronounced at the medial aspect of the lateral facet was reported. Overall, the records indicated that the articular cartilage of the medial and lateral compartments was preserved, and the medial and lateral menisci were intact. An April 2012 VA examination report indicated that the Veteran suffered from daily knee pain, stiffness, and decreased range of motion. He did not report flare-ups; right and left knee flexion was to 135 degrees with evidence of painful motion beginning at 90 degrees; and right and left knee extension was to 0 degrees, with painful motion beginning at 0 degrees. Post-repetitive use testing, the Veteran's right and left knee flexion was to 130 degrees, with extension to 0 degrees. The Veteran suffered less movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting standing and weight bearing after repetitive use testing on both knees. Veteran had tenderness or pain to palpation for joint line or soft tissue in both knees, but normal muscle strength and no instability. There was evidence of slight recurrent patellar subluxation/dislocation on both knees, and the Veteran had an antalgic gait due to his bilateral knee disability. The examination report noted that no degenerative or traumatic arthritis was documented. The Veteran was afforded another VA examination in August 2014. The examiner provided an in-person examination, but did not review the Veteran's claims file. The Veteran reported flare-ups which impacted the function of his knees, but the examiner opined that it would be speculative to express in terms of degrees of additional range of motion loss due to pain, weakness, fatigability or incoordination due to flare-ups as the Veteran was not suffering from one at the time of the examination. Right knee flexion was measured to 140 degrees with painful motion beginning at 120 degrees; extension was measured to 0 degrees; left knee flexion was to 140 degrees with painful motion beginning at 125 degrees; and extension was measured to 0 degrees. There was no additional limitation in range of motion after repetitive use testing; and the examination report noted pain on movement on both knees, as well as tenderness or pain to palpation for joint line or soft tissues on both knees. Muscle strength testing was normal, and no instability was noted. There was no recurrent patellar subluxation, no evidence of meniscal tear, no effusion, and the Veteran's gait was mildly antalgic right. Private treatment records from June 2015 indicate the Veteran underwent an MRI which discovered inferior fraying of the posterior horn of the medial meniscus peripherally; localized moderate grade chondromalacia; thickened medial plica; and soft tissue edema within the superior and lateral aspect of Hoffa's fat pad, consistent with patellofemoral fat pad impingement. An August 2017 VA examination report indicated that the Veteran suffered intermittent flare-ups of his knees with some stiffness, but denied patellar dislocation and instability. The Veteran stated that he occasionally wears knee braces for flare-ups. The examination report noted that the Veteran's right and left knee range of motion was normal, but pain on flexion was noted that did not result in or cause functional loss. There was no pain with weight bearing, but there was evidence of localized tenderness or pain on palpation of the joint or associated soft tissue and evidence of crepitus. There was no additional functional or range of motion loss after three repetitions, and the physician was unable to opine whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups without speculation as the Veteran was not suffering a flare-up at the time of the examination. The report noted a reduction in muscle strength in both knees, but no muscle atrophy, ankylosis, recurrent subluxation, or recurrent effusion. Joint instability was noted in the left knee, and degenerative or traumatic arthritis was documented in both knees. The physician opined that the Veteran had mild to moderate weakness on the right knee, and mild weakness on the left with no evidence of patellar subluxation or any other knee laxity or instability. He stated that the Veteran's bilateral chondromalacia patella had progressed to mild bilateral degenerative joint disease. A September 2017 disability benefits questionnaire indicated that the Veteran's flare-ups made it so that he was unable to run or walk long distances, and made ascending stairs and kneeling painful. The examination report indicated no painful movements on active, passive, and/or repetitive use testing on either knee, but pain in weight bearing or non-weight bearing in both knees which contributed to functional loss or additional limitation of range of motion. The report also indicated localized tenderness or pain to palpation of joints or soft tissue of both knees. The report indicated that regarding disability factors associated with limitation of motion, pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or when the joint was used repeatedly over a period of time in both knees. However, regarding contributing factors of disability not associated with limitation of motion, no functional loss was noted during flare-ups or when the joint was used repeatedly over a period of time or otherwise. The examination report indicated a reduction in muscle strength of the right knee, but no muscle atrophy, recurrent subluxation, lateral instability, or recurrent effusion. There was evidence of crepitus reported in the right knee; frequent episodes of joint locking and joint pain in both knees; and meniscus fraying. In light of the evidence of record, the Board finds that the Veteran's symptoms are most nearly approximated by the 10 percent disability rating for both the left and right knee for the entire period on appeal based upon limitation of motion under DC 5260 and the Veteran's report of pain and intermittent flare ups. Throughout the period on appeal, the Veteran's bilateral chondromalacia patella produced a range of motion of no less than 130 degrees flexion with pain noted on movement, with painful motion at 120 and 125 degrees for the right and left knees respectively. The 10 percent rating contemplates the Veteran's symptoms, as well as his report of flare-ups, as a 20 percent rating would require flexion limited to 30 degrees and the flare-ups were not indicated to be so severe as to result additional limitation of motion more nearly approximating this criterion. The physician who prepared the September 2017 disability benefits questionnaire indicated with regard to contributing factors of disability not associated with limitation of motion that no functional loss was noted during flare-ups or when the joint was used repeatedly over a period of time or otherwise. There is also no evidence of ankylosis in either knee, and the August 2017 VA examination report specifically indicates that no ankylosis was evident in either knee. Moreover, there was no evidence of removed semilunar cartilage or impairment of the tibia and fibula warranting separate or higher ratings under DCs 5259 or 5262. The Veteran has been in receipt of a separate 10 percent rating for recurrent subluxation under DC 5257. The above evidence shows that the Veteran complained of some knee buckling and "shakiness", and during the Veteran's April 2012 VA examination, there was evidence of slight recurrent patellar subluxation/dislocation on both knees. However, subsequent examinations noted no recurrent patellar subluxation or instability, and the August 2017 VA examination indicated only mild to moderate weakness on the right knee, and mild weakness on the left. Thus the Board finds that the Veteran's bilateral knee symptoms are most nearly approximated by the 10 percent disability rating under 5257. The above evidence reflects that the Veteran's bilateral knee instability did not more nearly approximate moderate or severe, as the examination reports noted no more than slight recurrent patellar subluxation at any time during the pendency of the appeal. The lay statements are consistent with this evidence, as the Veteran indicated that he wore knee braces only occasionally. Therefore, a rating higher than 10 percent for right and left knee patellar subluxation is not warranted under 38 C.F.R. § 4.71a, DC 5257. The Board acknowledges that the Veteran's August 2017 VA examination noted degenerative or traumatic arthritis in both knees. However, as the Veteran is currently rated for his bilateral knee disability based on limitation of motion, a separate rating under DC 5003 is not warranted. See 38 C.F.R. § 4.71a, DC 5003. The Board has also considered whether a separate rating is warranted under DC 5258. See Lyles v. Shulkin, No. 16-0994, 2017 U.S. App. Vet. Claims LEXIS 1704 (Vet. App. Nov. 29, 2017) (there is no prohibition of separate evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5257 or 5261 and a meniscal Diagnostic Code, i.e., Diagnostic Codes 5258 or 5259). Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking", pain and effusion into the joint. Semilunar cartilage is synonymous with the meniscus. While there is evidence of dislocated semilunar cartilage, the symptoms did not more nearly approximate joint pain, locking, and effusion into the joint. The August 2014, August 2017 and September 2017 examination reports/disability benefits questionnaires specifically indicate that there was no effusion into the joint. Therefore, a separate rating under DC 5258 is not warranted. With regard to the above evidence, the Board notes that the examination reports and disability benefits questionnaires are adequate to decide the claim. The August 2017 VA examination and September 2017 disability benefits questionnaire in particular addressed pain on active and passive motion, in weight bearing and nonweight-bearing, and with range of motion of both knee joints. Correia, 28 Vet. App. at 168. There is also sufficient evidence from which to estimate the degree of additional loss due to flare-ups. The physician who prepared the September 2017 disability benefits questionnaire made specific findings with regard to the degree of motion lost during flare-ups. Cf. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (finding orthopedic examination inadequate where the examiner declined to provide an estimate of the degree of additional loss of motion due to flare-ups because such would require resort to speculation). Finally, the Board has considered whether the Veteran is entitled to a compensable rating for right and left knee subluxation prior to April 26, 2012. The law relating to effective dates regarding increased ratings provides, "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C. § 5110(b)(3). The statute and its implementing regulations require that the evidence demonstrate that at least some portion of the increase in disability occurred within the one-year period prior to the date of the claimant's claim for increase to receive the benefit of an earlier effective date. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed.Cir.2010) (stating that section 5110(b)(2), now section 5110(b)(3), requires that "an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim ... to receive the benefit of an earlier effective date"). However, the effective date should not be assigned mechanically based on the date of a diagnosis. DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011). Rather, all of the facts should be examined to determine the date that the disability first manifested. Id. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that April 26, 2012 is the proper date for the grant of service connection for right and left knee lateral subluxation. There is no evidence prior to the April 2012 VA examination of subluxation or instability, and while the Veteran has provided statements regarding pain and stiffness, the only evidence he provided of treatment for, or complaints of instability or subluxation was in his May 2013 statement where he complained of "some shakiness." The evidence as a whole thus reflects that the date of the April 2012 VA examination was the first time it was factually ascertainable that the patellar subluxation of the knees manifested. Therefore, a compensable rating for patellar subluxation of the knees is not warranted prior to April 26, 2012. ORDER Entitlement to an initial rating higher than 10 percent for chondromalacia patellae with painful motion of the right knee is denied. Entitlement to an initial rating higher than 10 percent for chondromalacia patellae with painful motion of the left knee is denied. Entitlement to an initial rating higher than 10 percent for right knee patellar subluxation is denied. Entitlement to an initial rating higher than 10 percent for left knee patellar subluxation is denied. A compensable rating for patellar subluxation of the right knee and the left knee prior to April 26, 2012 is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs