Citation Nr: 1805071 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-10 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for patellofemoral pain syndrome of the left knee. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 2001 to January 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 decision of the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection and assigned a noncompensable evaluation, effective November 17, 2011. In September 2015, the Board remanded the claim for further development. In April 2016, the Agency of Original Jurisdiction (AOJ) awarded the Veteran a 10 percent rating for his left knee disability based on painful flexion of the knee, effective November 17, 2011. 38 C.F.R. § 4.59. As that did not constitute a grant of the full benefit sought on appeal, the claim for increase remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). In September 2016, the Board again remanded the claim for further development. FINDINGS OF FACT The Veteran's left knee flexion is at most limited to 130 degrees with pain and extension is full without pain; ankylosis, tibia or fibula impairment, instability, subluxation, or arthritis have not been shown by the record. CONCLUSION OF LAW A rating in excess of 10 percent for the Veteran's left knee disability is not warranted. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5019, 5260, 5261 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with 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). Legal Criteria Initially, 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). The Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Under DC 5260, a 10 percent rating is warranted for limitation of flexion to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a maximum 30 percent rating is warranted for flexion limited to 15 degrees. Under DC 5261, 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 maximum 50 percent rating is warranted for extension limited to 45 degrees. Separate ratings under DC 5260 and DC 5261 may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (Sept. 17, 2004). 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. Id. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). 38 C.F.R. § 4.59 does not require "objective" evidence, but can be satisfied with lay and other non-medical evidence. Petitti v. McDonald, 27 Vet. App. 415 (2015). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). The Board will grant the Veteran's claim if the evidence supports the claim or is in relative equipoise. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background In an examination in August 2012, the Veteran's left knee flexion ended at 135 degrees and he had full left knee extension. The examiner stated that he found no objective evidence of painful motion. Flexion and extension were the same with repetitive use testing. The examiner indicated the Veteran had functional loss demonstrated by less movement than normal. He did not have pain to palpation. The Veteran reported that he had to stretch out his knee, use ice packs, and take extra Motrin when he had significant pain during a flare-up. He reported having pain at work about every other day. He was an auto mechanic and indicated that the knee hurt the most when sitting for an extended period of time, generally 10 minutes or more, and when pushing cars or going down hills. He indicated that his knee would sometimes pop when going down hills. He took over-the-counter pain medications about 2 to 3 times a week. Instability testing was normal. X-rays did not reveal arthritis or evidence of recurrent subluxation or dislocation. In his substantive appeal dated March 2014, the Veteran stated that he had "extreme pain" in his left knee, even without repetitive use. He indicated he was unable to engage in activities that he enjoys because of his knee pain. In an April 2016 examination, the Veteran reported that his left knee pain had been worsening over time. He indicated the pain was localized to the inferior aspect of the left patella and was worsened after prolonged sitting, or going down steps or an incline. He stated that his knee "pops and locks from time to time" and that because of his symptoms he can no longer run or use an elliptical machine for more than 5 minutes. He took Motrin once or twice a week and iced the knee. He reported having to buy a special foam pad to kneel on at work. He indicated that he did not have a history of recurrent subluxation or lateral instability. The Veteran's left knee flexion ended at 135 degrees and extension was full. It was noted that there was pain on flexion, but that it did not result in any functional loss. There was no pain on weight bearing, objective evidence of pain on palpation of the joint, or objective evidence of crepitus. There was no additional functional loss or limitation of motion with repetitive use testing. There was no ankylosis or instability of the left knee found on examination. X-rays did not reveal arthritis. In a December 2016 examination, the Veteran reported that he experienced left knee pain "just about every day." He stated that he was in pain while he was squatting or kneeling at work, going downhill, and after sitting for long periods of time. He indicated that when he had a flare up of left knee pain he would get off the knee, sit down, and ice the knee. He would be able to return to normal activity about 20 minutes later. The Veteran reported having functional loss of not being able to run anymore and having trouble squatting, kneeling, and going downhill. The Veteran's flexion of his left knee was limited to 135 degrees and extension was full. There was no pain on range of motion, with weight bearing, or on palpation of the joint. There was also no evidence of crepitus. There was no additional functional loss or limitation of motion with repetitive use testing. The Veteran did not report a history of recurrent subluxation or lateral instability. Joint stability testing was normal. There was no ankylosis in the left knee. In a January 2017 examination, the examiner did not find instability or ankylosis of the left knee. She stated that the Veteran's active flexion of his left knee was 130 degrees and extension was full. There was no pain noted with motion. There was no pain on weight bearing or on palpation of the joint. There was also no objective evidence of crepitus. There was no additional functional loss or limitation of motion after repetitive use testing. There was no ankylosis. The Veteran did not report a history of recurrent subluxation or instability. Joint stability testing was normal. Analysis Currently, the Veteran is compensated at a 10 percent evaluation for his painful, but noncompensable limitation of flexion. Unfortunately, there is no evidence that would allow the Board to grant a higher evaluation. The Veteran's limitation of range of motion is not great enough to warrant a higher evaluation. Under DC 5260, a higher 20 percent evaluation requires flexion limited to 30 degrees. The Veteran's flexion was at most shown to be limited to 130 degrees, even when considering the Veteran's reports of pain and associated functional loss. He was able to perform repetitive use testing with no additional loss of motion or functional loss on each VA examination. The Veteran also is not entitled to a separate compensable rating for limitation of extension. Under DC 5261, a compensable evaluation requires extension limited to 10 degrees. Throughout the appeal period, the Veteran's extension has been full with no pain noted and repetitive use testing has not revealed any additional functional loss or limitation of motion. The Board has considered the Veteran's reports of pain on use and additional functional loss during flare ups. However, even when considering these additional factors, the Veteran's flexion is not more nearly approximated by flexion limited to 30 degrees or extension limited to 10 degrees that would warrant a higher rating under DC 5260 or a separate compensable rating under DC 5261. The Board has also considered whether the Veteran is entitled to any higher or separate ratings under any other pertinent criteria. There is no evidence the Veteran has any recurrent subluxation or lateral instability, ankylosis, genu recurvatum, impairment of the tibia and fibula, symptomatic removal of the semilunar cartilage, or dislocated semilunar cartilage of the left knee; therefore, evaluation under DCs 5256, 5257, 5258, 5259, 5262, or 5263 is not appropriate. Finally, the Board has considered whether any staged rating is appropriate for the separately assigned ratings discussed above. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board finds that evidence regarding limitation of flexion with pain has been consistent with the assigned rating for the entire relevant time period here on appeal. The record does not indicate any significant increase or decrease in such symptoms during the appeal period and symptoms warranting a higher rating have not been shown. Accordingly, staged ratings are not warranted for the left knee disability. The preponderance of the evidence is against the claim for an increased rating and, accordingly, the doctrine of equipoise (the "benefit of the doubt") does not apply. The Board notes that this decision does not leave the Veteran without recourse. If the service-connected disability should worsen in the future, the Veteran is free to file a new claim for an increased rating. However, for the Board to award additional compensation based on the mere potential for such worsening would be premature at this time. The Board is grateful to the Veteran for his honorable service. ORDER Entitlement to an initial evaluation in excess of 10 percent for patellofemoral pain syndrome of the left knee is denied. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs