Citation Nr: 18144403 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-30 156 DATE: October 24, 2018 ORDER Entitlement to an initial disability rating of 10 percent, but no higher, prior to July 24, 2015 for left knee patellofemoral pain syndrome is granted. Entitlement to an initial disability rating of 10 percent, but no higher, prior to July 24, 2015 for right knee patellofemoral pain syndrome is granted. Entitlement to an initial disability rating higher than 10 percent for left knee patellofemoral pain syndrome is denied for the entire period on appeal. Entitlement to an initial disability rating higher than 10 percent for right knee patellofemoral pain syndrome is denied for the entire period on appeal. FINDINGS OF FACT 1. From October 1, 2014 to July 24, 2015, the Veteran’s left knee patellofemoral pain syndrome disability manifested as no worse than painful movement causing reduction of normal excursion of left knee movements in different planes. 2. From October 1, 2014 to July 24, 2015, the Veteran’s right knee patellofemoral pain syndrome disability manifested as no worse than painful movement causing reduction of normal excursion of right knee movements in different planes. 3. During the period on appeal, the Veteran’s left knee patellofemoral pain syndrome disability manifested as no worse than painful movement with range of motion limited to left knee flexion from 0 to 125 degrees and extension from 125 to 0 degrees, both with pain, and objective evidence of crepitus and pain with weight bearing, resulting in painful walking, using stairs, squatting, and lifting, and reduction of normal excursion of left knee movements in different planes. 4. During the period on appeal, the Veteran’s right knee patellofemoral pain syndrome disability manifested as no worse than painful movement with range of motion limited to right knee flexion from 0 to 115 degrees and extension from 115 to 0 degrees, both with pain, and objective evidence of crepitus and pain with weight bearing, resulting in painful walking, using stairs, squatting, and lifting, and reduction of normal excursion of right knee movements in different planes. CONCLUSIONS OF LAW 1. Prior to July 24, 2015, the criteria for an initial disability rating of 10 percent, but not higher, for left knee patellofemoral pain syndrome were met. See 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260. 2. Prior to July 24, 2015, the criteria for an initial disability rating of 10 percent, but not higher, for right knee patellofemoral pain syndrome were met. See 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. The criteria for an initial disability rating higher than 10 percent for left knee patellofemoral pain syndrome have not been met for any period on appeal. See 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260.   4. The criteria for an initial disability rating higher than 10 percent for right knee patellofemoral pain syndrome have not been met for any period on appeal. See 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260. REFERRED ISSUE In March 2017, the RO determined the Veteran was entitled to a retroactive Concurrent Receipt of Retired and Disability Pay (CRDP) compensation payment of $8,582.08 for the time period August 01, 2015 through November 30, 2016. The Veteran filed a notice of disagreement (NOD), contending that the time period under consideration should date back to October 20, 2014. This NOD remains pending at the RO level. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1991 to September 2014. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision dated March 2015, which granted service connection for bilateral knee patellofemoral pain syndrome and assigned a 0 percent disability rating for each knee. VA received evidence subsequent to the final consideration of the claim by the RO, but the Veteran waived RO consideration of that evidence in correspondence received in September 2018. The Board may consider the appeal. See 38 C.F.R. § 20.1304(c). The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the June 2016 statement of the case, and are not repeated here in full. Neither the Veteran nor his representative raised any other issues with the duty to notify or the duty to assist not addressed herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding “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”). Thus, the Board need not discuss any potential issues in this regard. Finally, neither the Veteran nor his representative raised any other issues not addressed herein, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming Board not required to address issues unless specifically raised by claimant or reasonably raised by evidence of record). Increased Rating The RO granted service connection for bilateral patellofemoral pain syndrome with a 0 percent disability rating from October 1, 2014, the day after the Veteran’s discharge from active service. During the pendency of this appeal, the RO increased the rating for each knee to 10 percent from July 24, 2015. He seeks higher initial ratings for both periods. Disability evaluations are determined by comparing the Veteran’s symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. When a question arises as to which of two ratings apply under a particular Diagnostic Code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA regulations also instruct that evaluation of a service-connected disability involving the musculoskeletal and joints requires adequate consideration of functional loss due factors such as pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Similarly, the provisions of 38 C.F.R. § 4.45 state the factors of disability of the joints reside in reductions of their normal excursion of movements in different planes, such as due to pain on movement, weakened movement, excess fatigability, and incoordination. Although pain alone does not equate with functional loss, pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion may cause functional loss if it affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); accord Saunders v. Wilkie, 886 F.3d 1356, 1367 (Fed. Cir. 2018) (“to establish a disability, the veteran’s pain must amount to a functional impairment”). Further, 38 C.F.R. § 4.59 recognizes painful motion of musculoskeletal conditions as productive of disability, such that a veteran is entitled to the minimum compensable evaluation available under the applicable Diagnostic Code whenever the evidence of record reveals that the joint or periarticular region at issue is actually painful, unstable, or malaligned. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). The Veteran underwent a VA examination in February 2015 that showed, bilaterally, normal range of motion initially and after repetitive use testing, with no evidence of pain with weight bearing, no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, normal muscle strength, no muscle atrophy, and no ankylosis. The examiner performed joint testing using the Lachman test, posterior drawer test, and valgus and varus pressure tests, which showed no joint instability. Based on a review of x-rays from February 2014, the examiner indicated no degenerative or traumatic arthritis in either knee. The Board finds the February 2015 VA examination has reduced probative value on the existence of functional loss because the examiner did not test the Veteran’s range of motion or otherwise determine the existence or degree of functional loss after repetitive use over time. This is particularly significant in this case because the Veteran has consistently stated that his symptoms manifest and become worse with repetitive use over time. See, e.g., August 2011 service treatment record (reporting pain with running and going upstairs); February 2012 service treatment record (reporting pain becomes worse and it is very difficult to walk and go up and down stairs after approximately 30 minutes of repetitive use); April 2015 notice of disagreement (stating “weight of standing and walking is what causes the pain to occur”). The RO assigned a 0 percent rating on the grounds the Veteran had a diagnosed disability with no compensable symptoms. See March 2015 rating decision. The Board finds the Veteran is entitled to the minimum compensable rating for each knee, 10 percent, from October 1, 2014 to July 24, 2015, pursuant to 38 C.F.R. § 4.59, based on painful motion of the knees that resulted in functional loss. The Veteran competently, credibly, and consistently reported during service his longstanding symptoms of chronic bilateral knee pain that resulted in pain on movement and the inability to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, namely going up and down stairs. See, e.g., August 2011 and February 2012 service treatment records; see also April 2014 Report of Medical Exam (noting chondromalacia). The Veteran has maintained his claims of these symptoms throughout the appeal period. See April 2015 notice of disagreement (stating he “cannot walk up or down stairs without using the hand rails to support my weight”); June 2016 VA Form 9 (stating he “cannot use stairs without using a hand rail”). Therefore, as a result of this grant, the Veteran will now have a 10 percent rating for the entire time period on appeal. The Board will next consider whether a higher rating, or separate ratings, can be granted. The Veteran underwent another VA examination for his knees in July 2015 where the Veteran reported knee pain that became worse over the course of the day, with functional impairments of limping and pain when squatting, kneeling, standing, and going up stairs, and severe bilateral flare ups that occurred twice a month and lasted two to three days. Initial range of motion testing showed right knee flexion from 0 to 125 degrees and extension from 125 to 0 degrees, both with pain, and flexion from 0 to 115 degrees and extension from 115 to 0 degrees after three repetitions, with the additional loss of motion due to pain. The Veteran had initial left knee flexion from 0 to 130 degrees and extension from 130 to 0 degrees, both with pain, and flexion from 0 to 125 degrees and extension from 125 to 0 degrees after three repetitions, with the additional loss of motion due to pain. The examiner noted evidence of pain with weight bearing and objective evidence of crepitus bilaterally, and that the application of medial or lateral stress to the Veteran’s knees, or direct pressure on the patellae, caused him to flinch and wince. The examiner found normal muscle strength, no muscle atrophy, and no ankylosis bilaterally. Joint stability testing was not indicated, due to no history of recurrent subluxation or lateral instability. The examiner noted painful walking, using stairs, squatting, and lifting impacted the Veteran’s ability to perform occupational tasks. As with the February 2015 examination, the Board finds the probative value of the July 2015 examination somewhat reduced because the examiner did not test the Veteran’s range of motion or otherwise determine the existence or degree of functional loss after repetitive use over time. However, the diminishment in probative value is less because the examiner indicated the examination supports the Veteran’s description of his functional loss with repetitive use over time, which is generally that his symptomology and functional loss manifest with actual, weight-bearing use, particularly with repeated or extended use, as opposed to range of motion testing. See April 2015 notice of disagreement (“When evaluated for my knees [in February 2015], I was laid down on a table and my knee was stretched which is not what causes the pain. The weight of standing and walking is what causes the pain to occur.”); accord June 2016 VA Form 9 (stating “I do not have difficulty placing my knees into a specific motion range but it takes time and pain in order to get them into the positions,” that his “mobility is moderately instable considering I cannot use stairs without using a hand rail,” and asserting he had to change jobs from one that required “constant walking” to one that allowed him more time to “sit and take the weight off” his knees); September 2016 private treatment record (Veteran reported “trouble going up and down stairs and with high-intensity exercise”). The Veteran submitted a private treatment record from September 2016 noting he had crepitation and peripatellar tenderness bilaterally, but had full flexion and extension bilaterally, that all ligaments appeared stable bilaterally (with guarding of left knee noted on examination), and that he walked with a level gait pattern with no antalgia. The Board finds the Veteran’s disability picture for his bilateral patellofemoral pain syndrome most nearly approximates the criteria for the minimum 10 percent ratings currently assigned based on painful motion with some functional loss, namely painful walking and difficulty using stairs with extended or repeated use. His range of motion testing has not shown limitations that would warrant higher or separate ratings, nor is there objective evidence of instability. The Board finds the Veteran is not entitled to any higher or additional ratings for his bilateral patellofemoral pain syndrome. The Veteran has not been shown to have had or approximated during the appeal period any of the following diagnoses, conditions, or symptoms that would warrant a higher or additional rating for either or both of his knees: ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint, removed semilunar cartilage, limitation of leg flexion to 45 degrees or less, limitation of leg extension to 10 degrees or less, any malunion or nonunion of his tibia and fibula, or genu recurvatum. While 2018 x-rays suggested possible mild degenerative joint disease, the minimum rating for arthritis with painful motion is 10 percent. Without additional limitation of motion or other findings, even with a diagnosis of arthritis, a rating higher than 10 percent for each knee is not currently warranted. See 38 C.F.R. § 4.71a, DCs 5003, 5010, 5256 – 5263. As the evidence is not in at least approximate balance that the Veteran is entitled to any higher or additional ratings for his bilateral patellofemoral pain syndrome, the benefit-of-the-doubt doctrine is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Duty to Assist The Board acknowledges the Veteran’s complaints regarding the thoroughness of the February 2015 and July 2015 VA examinations, namely that the examiner did not give him a pain scale when performing knee movements, that the length of time it took him to perform range of motion testing was not taken into account, and that his in-service magnetic resonance imaging (MRI) images were not reviewed. See June 2016 notice of disagreement; June 2016 VA Form 9. He also asserts the July 2015 examiner “did not perform a knee exam by physically having me perform movements.” See June 2016 notice of disagreement. A presumption of regularity is applied to all manner of VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004) (“The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.”); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (applying the presumption of regularity to VA examinations). Clear evidence is required to rebut the presumption of regularity. Miley, 366 F.3d at 1347. Here, the Board finds the presumption of regularity has not been rebutted as to either VA examination. Both VA examination reports clearly indicate the examiner performed an in-person examination (to include range of motion testing), reviewed the Veteran’s claims file (which included detailed reports regarding the Veteran’s in-service knee x-rays and MRIs), and addressed the inquiry relevant to determining the severity of his bilateral patellofemoral pain syndrome. The Board finds the examination findings are adequate and sufficient upon which to decide the claim. The examiner completed all portions of the report necessary to rate the Veteran’s disability, and ratings are not assigned based on MRI findings. VA’s duty to provide an adequate examination has been satisfied. Moreover, the Veteran should understand a decision is not based solely on the examination reports, but the Board considers all the evidence. Therefore, his treatment records and the findings therein, as well as his written statements, supplement the VA examination reports. The Board also acknowledges the contentions by the Veteran’s representative that a new VA examination is required because the July 2015 VA examination is outdated and the testing was insufficient. The Board finds remanding the claim for a new examination is not required because a new examination is not required solely because of the passage of time; rather, there must be an indication of a worsening of the disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). Here, neither the Veteran nor his representative have asserted or presented any evidence suggesting there has been a worsening of the disabilities. To the contrary, the most recent medical evidence submitted by the Veteran, a September 2016 private treatment record, showed normal range of motion and other findings consistent with both the July 2015 VA examination and the Veteran’s ongoing descriptions of his manifestations of functional loss. Thus, there is no indication that the record does not adequately reveal the current state of the Veteran’s disabilities. Additionally, the July 2015 VA examiner completed all necessary testing of both knees, to include pain throughout flexion and extension, pain on weight bearing, and pain upon manual manipulation, and provided   pertinent information regarding the severity of the disabilities. Therefore, the July 2015 VA examination is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Leamon, Associate Counsel