Citation Nr: 18143279 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 12-33 632 DATE: October 18, 2018 ORDER Entitlement to a disability rating in excess of 10 percent, for left knee lateral patellar friction syndrome (previously characterized as ilium-tibial band syndrome) is denied. Entitlement to an initial disability rating in excess of 10 percent for right knee lateral patellar friction syndrome is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s left knee lateral patellar friction syndrome has been manifested by flexion of at least 110 degrees, at worst. 2. Throughout the period on appeal, the Veteran’s right knee lateral patellar friction syndrome has been manifested by flexion of at least 105 degrees, at worst. 3. The preponderance of the evidence is against a finding that the Veteran’s bilateral patellar friction syndrome has manifested in ankylosis, recurrent subluxation, or dislocated semilunar cartilage with locking, pain, and effusion into the joints. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for limitation of flexion for left knee lateral patellar friction syndrome have not been met. 38 U.S.C. § 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.159, 3.21, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258, 5259, 5260, 5261, 5263 (2018). 2. The criteria for an initial disability rating in excess of 10 percent for limitation of flexion for right knee lateral patellar friction syndrome have not been met. 38 U.S.C. § 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.159, 3.21, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258, 5259, 5260, 5261, 5263 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1993 to October 1994. This current matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before a Decision Review Officer in March 2012, and before the undersigned Veterans Law Judge in October 2015. Transcripts of these proceedings have been associated with the Veteran’s claims file. These matters were previously before the Board in February 2017 and July 2017. On both occasions, the Board remanded the issues on appeal for further evidentiary development. The Board finds that these remand directives have been substantially complied with. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In December 2016, a rating decision granted separate disability ratings for instability of both knees, awarding 10 percent for each knee. The Veteran has not indicated any disagreement with this determination, and thus the issue of instability is not before the Board. The issue of entitlement to service connection for a low back disability was also remanded by the Board for further development. In May 2018, the RO granted service connection for a low back disorder. This represents a full grant of the benefits sought, and the issue is no longer in appellate status. Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Finally, with respect to the issue of entitlement to a total disability rating due to individual unemployability (TDIU), Rice v. Shinseki, 22 Vet. App 447, 453 (2009), the Board notes that a September 2016 rating decision granted entitlement to TDIU. The Veteran has not appealed or otherwise challenged the effective date of this award. As such, it is not currently before the Board. Entitlement to disability ratings in excess of 10 percent for right and left knee lateral patellar friction syndrome. The Veteran contends that the currently assigned 10 percent disability ratings for her right and left knee, respectively, do not accurately reflect the current severity of her bilateral patellar friction syndrome. However, the evidence of record does not support this contention, and the claims for increased disability ratings are denied. Applicable Law and Regulations Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating of the same disability under various diagnoses is to be avoided (38 C.F.R. § 4.14), but this does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 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. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to those elements. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The rating of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 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. Under Diagnostic Code 5003, degenerative arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected, which in this case would be Diagnostic Codes 5260 for limitation of flexion of the leg. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion diagnostic code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is warranted if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Ratings under Diagnostic Code 5003 are not to be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5260, a 10 percent rating is assigned for knee flexion limited to 45 degrees. A 20 percent rating is assigned for knee flexion limited to 30 degrees. A maximum 30 percent rating is assigned for knee flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Normal range of extension of the knee is to 0 degrees and normal range of flexion of the knee is to 140 degrees. 38 C.F.R. § 4.71a, Plate II. Separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint, but only where the criteria for a compensable rating are met under each diagnostic code. VAOGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (2004). As noted above, the Veteran is currently in receipt of 10 percent disability ratings for each knee for instability. However, as the issue of instability is not on appeal, it will not be further discussed herein. Other diagnostic codes relating to the knee are Diagnostic Code 5256 (ankylosis), Diagnostic Codes 5258 and 5259 (symptomatic dislocation and/or removal of semilunar cartilage), Diagnostic Code 5262 (impairment of tibia and fibula) and Diagnostic Code 5263 (genu recurvatum). These conditions are not shown on examination and the Board finds that application of those diagnostic codes is not warranted. 38 C.F.R. § 4.71a. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Initially, the Board notes that the periods on appeal differ for each knee. The left knee has been in appellate status since March 24, 2011, and the right knee has been in appellate status since October 12, 2011. Regarding the left knee, the Veteran underwent a VA examination in July 2011. She reported the following symptoms: weakness, swelling, giving way, lack of endurance, locking, and pain, but denied: stiffness, heat, redness, fatigability, deformity, tenderness, drainage, effusion, subluxation, and dislocation. The Veteran reported flare-ups, precipitated by physical activity, as often as two times per day lasting one hour at a time, and she claimed that, during flare-ups, she was unable to walk for any extended period of time; she also experienced limitation of motion; swelling; popping; and giving way. The Veteran was able to flex to 140 degrees bilaterally. Joint function was not additionally limited by pain, fatigue, weakness, and lack of endurance or incoordination after repetitive use. Stability testing was within normal limits and there was no evidence of a cartilage condition or subluxation. With respect to both knees, the Veteran underwent a VA examination in October 2011. At that time, she reported pain with intermittent flare-ups; aggravating factors included increased walking and stair climbing. The Veteran’s flexion was noted to 105 degrees in the right knee and 120 degrees in the left knee. The Veteran performed repetitive range of motion testing, and the examiner noted her flexion actually improved by five degrees after repetitive testing. Despite this finding, the examiner indicated that the Veteran manifested the following factors that contributed to additional functional loss: less movement than normal and pain on movement. Muscle strength was normal, and there were no findings of a cartilage condition or subluxation. The Veteran testified at a personal hearing before a Decision Review Officer in March 2012. At that time, she reported a number of bilateral knee symptoms including: locking, swelling, pain, limited range of motion, and difficulty walking and squatting. See March 2012 Transcript. The Veteran later testified at a personal hearing before the undersigned in October 2015, when she reported a number of bilateral knee symptoms including: locking, swelling, pain, and trouble climbing stairs. She stated that she could only stretch her knee to 30 degrees or less. See October 2015 Transcript. The Veteran was afforded a VA examination in October 2016 due to her complaints that her bilateral knee pain had increased in severity. She stated that she was unable to extend her knees and that her knees locked up and manifested weakness. The Veteran’s flexion was noted to 110 degrees bilaterally, and her extension was to zero degrees bilaterally. She performed repetitive range of range of motion testing without additional loss of range of motion. The examiner concluded that pain and lack of endurance significantly limited the Veteran’s functionality over time. Muscle strength was normal, and there was no evidence of a cartilage condition or subluxation. At an October 2017 VA examination, the Veteran reported pain and locking with flare-ups three to five times per week lasting six hours at a time. The Veteran’s flexion was noted to 140 degrees bilaterally, and her extension was to zero degrees bilaterally. The Veteran performed repetitive range of use testing without additional loss of range of motion. The examiner indicated that the Veteran’s reports of additional functional loss were neither medically consistent or inconsistent with the examination results, and the examiner was unable to opine that the Veteran was manifesting additional functional loss due to pain, fatigue, weakness, lack of endurance, or incoordination without resorting to mere speculation. Muscle strength and joint stability testing yielded normal results. The Veteran was not diagnosed with a cartilage condition or subluxation. The Board finds that ratings in excess of 10 percent for limitation of motion of the right and left knees are not warranted. In order to meet the criteria for a disability rating in excess of 10 percent, the Veteran must manifest a flexion of 30 degrees or less. The Veteran’s flexion was measured multiple times throughout the periods on appeal, and her flexion was always well in excess of 30 degrees for both of her knees. As such, the Veteran is not entitled to disability ratings in excess of 10 percent for limitation of flexion of the left knee. The Veteran’s additional limitation due to pain, weakness, fatigability, lack of endurance, or incoordination on repetition was accounted for by the VA examiners when determining her range of motion and has been considered in finding that a rating of 10 percent is warranted. 38 C.F.R. § 4.40, 4.45. The preponderance of the evidence is against a finding that the Veteran has more limitation of motion than that found at the VA examinations of record. Further, as previously stated herein, the Veteran is separately compensated for instability of her knees. Significantly, ankylosis, recurrent subluxation, or dislocated semilunar cartilage with locking, pain, and effusion into the joints has not been shown in either knee. Accordingly, the weight of the probative evidence of record fails to support a finding that the Veteran is entitled to increased disability ratings for her knees (or separate ratings for either knee where applicable). The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to disability ratings in excess of 10 percent, respectively, for lateral patellar friction syndrome of each knee, is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel