Citation Nr: 1805409 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 11-26 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for right knee patellofemoral syndrome (right knee disability). 2. Entitlement to an increased rating in excess of 10 percent for left knee patellofemoral syndrome (left knee disability). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1980 to August 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the Veteran also had claims of entitlement to service connection for bilateral hearing loss and pes planus; however, these claims were granted during the course of this appeal, and as such, represents a full grant of the benefits sought. Thus, the claims are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). This case was previously before the Board in February 2017 and was remanded for further development. As remand directives have been substantially complied with, the Board will proceed with adjudication of the Veteran's claims. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. For the period on appeal, the Veteran's right knee disability has been manifested by subjective complaints of pain, extension limited to 0 degrees, flexion limited to 60 degrees at its worst, with some effusion, but no locking, ankylosis, recurrent subluxation or instability, and no functional loss beyond pain. 2. For the period on appeal, the Veteran's left knee disability has been manifested by subjective complaints of pain, extension limited to 0 degrees, flexion limited to 40 degrees at its worst, with some reported effusion, but no ankylosis, locking, recurrent subluxation or instability, and no functional loss beyond pain. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5261, (2017). 2. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has complied with the duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increased Ratings Disability ratings are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage and functional loss with respect to all these elements. Id. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. The Court explained in Mitchell that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes, however, that the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Bilateral Knee Disability The appropriate diagnostic codes for rating limitation of motion of the right and left knees are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a Veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and non-compensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and non-compensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. The Board notes that assigning multiple ratings for the Veteran's knee disabilities based on the same symptoms or manifestations would constitute prohibited pyramiding. 38 C.F.R. § 4.14 (2017). Separate ratings for knee disabilities may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. Under Diagnostic Code 5259, a 10 percent rating can be assigned for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a. Under Diagnostic Code 5258, a 20 percent evaluation can be assigned for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. Id. Recurrent subluxation or lateral instability can be rated as slight (10 percent), moderate (20 percent), or severe (30 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5257. In this case, the Veteran is seeking an increased rating for his bilateral knee condition. Presently, the Veteran is rated at 10 percent disabling for his right knee disability, and 10 percent disabling for his left knee disability, both for painful motion. After a thorough review of the evidence, the Board finds that an increased rating is not warranted. The Board's conclusion is supported by the analysis below. The evidence shows that in March 2010, the Veteran complained of his knees and ankles being painful. The examiner noted pain and swelling in his knees and ankles, no edema, no knee effusion, and no laxity bilaterally. The examiner also noted that the Veteran works and uses no assistive device. Results from the Veteran's x-ray showed no visible knee effusion, joint spaces and bony structures have a normal appearance. The examiner diagnosed the Veteran with bilateral knee patellofemoral pain syndrome. In the Veteran's April 2010 VA examination, the examiner noted crepitus, effusion, tenderness, pain at rest, abnormal motion, guarding of movement, no meniscus abnormality, no clicks or snaps, no grinding, and no instability for both knees. Range of motion (ROM) findings showed left knee flexion limited to 110 degrees and left knee extension normal at 0 degrees. With regard to the right knee, ROM findings showed right knee flexion limited to 95 degrees, and right knee extension normal at 0 degrees. There was no objective evidence of pain with active motion bilaterally. The examiner further found no joint ankylosis for either knee, and noted that the Veteran walks with an antalgic gait. In a January 2011 primary care note during an initial visit, the Veteran complained of pain in his feet and ankles for years. While the Veteran did not complain of knee pain, he mentioned injuring his knees while in the military. He indicated that he saw an orthopedist for his knees in February 2010 but could not recall any specific treatment other than taking meloxicam and wearing a knee brace for both knees. However, the examiner noted that the Veteran was not wearing his knee braces that day. A subsequent April 2011 x-ray showed that the Veteran's knees were normal. On June 7, 2011, the Veteran received a VA examination of his knees. The examiner reported that the Veteran was using a cane, and that the Veteran has tenderness with patellar grind, and that he has an antalgic gait favoring his left lower extremity. The examiner also noted that the Veteran has no gross deformity of the knees, and no spasm or weakness. ROM findings for both knees showed flexion limited to 100 degrees, and extension at 0 degrees. Additionally, the examination seems to indicate that the Veteran had a limitation in flexion with pain on movement to 60 degrees; however, the examiner's notes are unclear. On repetitive use testing, there was no limitation due to painful motion, weakness, fatigue, or incoordination. Similarly, on June 10, 2011 a Physical Therapy Note showed ROM findings with right knee flexion at 105 degrees, left knee flexion at 100 degrees, and both lower extremities, straight leg raises (BLE SLR) at 50 degrees actively, in which the examiner noted that the Veteran gave "poor effort." The Veteran denied problems with knee instability and reported that he did not have a need for a more supportive knee brace. The Veteran also did leg raises and hamstring curls with three pound weights at the knee. A November 2011 Physical Therapy Discharge Note shows that the Veteran complained of bilateral chronic knee pain, but was only seen four times for therapy between March 2011 and June 2011. The examiner noted that the Veteran had cancelled several appointments due to his school schedule, and that the Veteran's main concern that day was to receive replacement knee supports. The examiner also noted that the Veteran was not using an assistive device and that his knees exhibited no crepitus, errythemia [sic], swelling, and bilateral ROM was 0-110 degrees. In a January 2012 VA examination, ROM findings showed both right and left knee flexion at 140 degrees, with no limitation due to pain, and right and left knee extension at 0. The examiner noted that there was no objective evidence of pain, no functional limitation due to pain, and no functional limitation after repetitive use testing. The examiner also noted that the Veteran did not exhibit any functional loss or instability. The examiner diagnosed the Veteran with bilateral patellofemoral pain syndrome. Notably, the examiner reported that the Veteran displayed poor effort and refused to flex his knees requiring a significant amount of encouragement, persistence, positioning, and distraction in order for him to do the ROM exam. In June 2015, the Veteran requested a new knee brace and complained of only right knee pain, rating his pain at a level of 2. However, shortly thereafter in July 2015 during a physical therapy consult, the Veteran complained of bilateral knee pain, noting that the pain level is constant at a level of 8. Again, the Veteran refused testing of his left lower extremity; however, the examiner estimated both lower extremities at 0-120 degrees. The evidence also shows that a March 2016 x-ray compared with the Veteran's prior April 2011 x-ray resulted in no significant change, except for a probable small right suprapatellar joint. In the Veteran's May 17, 2017 DBQ, the examiner also diagnosed the Veteran with patellofemoral pain syndrome in both knees. ROM findings showed right knee flexion ranging from 0 to 60 degrees, extension from 60 to 0 degrees, and left knee flexion ranging from 0 to 40 degrees, extension from 40 to 0 degrees. The examiner noted evidence of tenderness, pain with weight-bearing and non-weight-bearing, and crepitus for both knees. The examiner also noted that there was no additional functional loss after repetitive use testing. There was also no evidence of ankylosis, subluxation, lateral instability, or recurrent effusion. The examiner reported that joint stability testing was not performed as the Veteran was in too much pain to test. The Veteran reported using a brace and cane constantly. Considering the evidence as a whole, the Board finds that a rating greater than 10 percent is not warranted at any time during the appeal period, as the evidence shows that the Veteran's knee disabilities have not resulted in compensable limitation of motion greater than noncompensable on the right, and greater than 10 percent on the left. 38 C.F.R. § 4.71, Diagnostic Codes 5260, 5261. The Board notes that standard range of motion of a knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. For the appeal period, the Veteran's ROM findings for flexion have been, at worst, limited to 60 degrees flexion on the right, and 40 degrees on the left, with extension at 0 degrees. These ranges of motion equate to noncompensable limitation of motion for the right knee, and, for the left knee, a noncompensable rating prior to the May 2017 examination, and the 60 degrees of flexion reported in May 2017, equates to a 10 percent rating, which is already assigned. Because the Veteran's limitation of motion is based on pain, and he is already receiving a 10 percent rating based on painful motion in the left knee, assigning an additional 10 percent rating for painful limited motion of the left knee would constitute impermissible pyramiding. Thus, a higher rating is not warranted despite the compensable limitation of motion in May 2017. The Board recognizes that the Veteran has reported symptoms of pain, and he is competent to do so; however, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Board finds the VA examinations and other medical evidence to be more probative than the Veteran's subjective complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). The Board has also considered other diagnostic codes pertaining to the Veteran's knee disabilities; however, the evidence does not support a separate evaluation at any time throughout the appeal period. While the evidence shows that the Veteran experienced some effusion, there is no evidence of dislocation, locking, instability, subluxation, or ankylosis. Moreover, the Veteran's x-ray images were all normal with no fractures, dislocations, instability, or subluxation. Therefore, the Veteran is not entitled to a separate evaluation. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259 (2017). Likewise, the Board notes that evaluations for knee impairment can also be assigned based upon impairment of the tibia and fibula and genu recurvatum, but as the record does not show any evidence of genu recurvatum, or impairment of the Veteran's tibia or fibula, these diagnostic codes are not applicable. See 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263 (2017). Furthermore, additional compensation for functional loss is not warranted as the record does not demonstrate fatigability, incoordination, weakness, or additional loss of function during flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). The Board notes that the Veteran's statements have been inconsistent with regard to the severity of his knee disabilities. For example, the Veteran reported that he uses his brace and cane regularly; however, in a March 2010 physician visit, the Veteran did not have any assistive device, and in his January 2011 initial physician visit, the Veteran wasn't wearing a brace on either knee that day. Similarly, the Veteran did not have an assistive device in his November 2011 physical therapy visit, and in March 2016 when the Veteran reported that he helps to lift and deliver furniture at work, he also indicated that he does not wear his knee brace because it "slips down." Therefore, this evidence seems to suggest that the Veteran does not have a need for an assistive device and/or the need for knee braces consistently, which is contrary to the Veteran's report of using a cane and brace "regularly" and on a "constant basis" as reported in his May 2017 DBQ. Lastly, none of the examiners found a decrease in functional limitations due to painful motion, weakness, fatigue, incoordination, or limitation of motion, nor after repetitive use testing. The Board notes that the Veteran was found to have an antalgic gait in his April 2010 and June 2011 VA examinations; however, there is no evidence to suggest that his gait caused any additional functional loss. Therefore, as the Veteran's complaints surrounding his knees have been of pain only, and there is no evidence of functional loss, the Board finds that a separate rating due to functional loss is not warranted at any time during the appeal period. For the reasons explained above, the Board finds that the preponderance of the evidence is against an increased rating for the Veteran's right and left knee disabilities. ORDER Entitlement to a rating greater than 10 percent for right knee patellofemoral syndrome is denied. Entitlement to a rating greater than 10 percent for left knee patellofemoral syndrome is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs