Citation Nr: 18150621 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 12-10 426 DATE: November 15, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome with degenerative joint disease is denied. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome with degenerative joint disease is denied. FINDINGS OF FACT 1. The Veteran’s service-connected left knee patellofemoral syndrome with degenerative joint disease has manifested in flexion limited to, at worst, 120 degrees and full extension without further limitation after repetitive use testing due to pain, fatigue, weakness, lack of endurance or incoordination. 2. The Veteran’s service-connected right knee patellofemoral syndrome with degenerative joint disease has manifested in flexion limited to, at worst, 125 degrees and full extension without further limitation after repetitive use testing due to pain, fatigue, weakness, lack of endurance or incoordination. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left knee patellofemoral syndrome with degenerative joint disease have not been met or approximated. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5014, 5256-5262 (2017). 2. The criteria for a disability rating in excess of 10 percent for right knee patellofemoral syndrome with degenerative joint disease have not been met or approximated. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.102, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5014, 5256-5262 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2016). Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2016). Separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2017). The General Rating Formula for Diseases and Injuries of the knee are governed under 38 C.F.R. 4.71a. The Veteran is currently in receipt of bilateral initial disability ratings of 10 percent under Diagnostic Code 5010. Diagnostic Code (DC) 5010 states that traumatic arthritis is to be rated as degenerative arthritis under DC 5003, which in turn provides that the severity of degenerative arthritis, when 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 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. In the absence of limitation of motion, under DC 5003, X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups warrants a 10 percent rating. Involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations warrants a 20 percent rating. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, DC 5003. DC 5257 assigns ratings based on recurrent subluxation or lateral instability of the knee: slight impairment warrants a 10 percent disability rating; moderate impairment warrants a 20 percent disability rating; and severe impairment warrants a 30 percent disability rating. 38 C.F.R. § 4.71a, DC 5257. DC 5260 assigns ratings based on limitation of flexion and provides a noncompensable rating if flexion is limited to 60 degrees; a 10 percent rating where flexion is limited to 45 degrees; a 20 percent rating where flexion is limited to 30 degrees; and a 30 percent rating where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5261 assigns ratings based on limitation of extension of the leg and provides a noncompensable rating if extension is limited to 5 degrees; a 10 percent rating if extension is limited to 10 degrees; a 20 percent rating if extension is limited to 15 degrees; a 30 percent rating if extension is limited to 20 degrees; a 40 percent rating if extension is limited to 30 degrees; and a 50 percent rating if extension is limited to 45 degrees. DC 5262 assigns ratings based on impairment of the tibia and fibula and provides a 10 percent disability rating for malunion with slight knee or ankle disability; a 20 percent disability rating for malunion with moderate knee or ankle disability; a 30 percent disability rating for malunion with marked knee or ankle disability; and a 40 percent disability rating for nonunion of the tibia and fibula with loose motion requiring a brace. DC 5263 assigns a 10 percent rating for acquired and traumatic genu recurvatum with weakness and insecurity in weight-bearing that is objectively demonstrated. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). 1. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome with degenerative joint disease 2. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome with degenerative joint disease In September 2009 the Veteran underwent a VA knee examination. The Veteran was diagnosed with patellofemoral syndrome dating back to 1998. He denied daily pain, but experienced flare-ups described as 8/10 usually lasting two hours after excessive running. The Veteran had occasional swelling and no subluxation, dislocation or instability. He occasionally wore a brace but did not use an assistive device and it did not affect his gait or walk. With flares and repetitive use, he will elevate his knee and use Motrin and ice. His daily limitations were to walk one mile, run one mile and decreased squatting. He had not been totally incapacitated in the past 12 months. During the Veteran’s September 2009 VA examination, he was also diagnosed with left knee patellofemoral syndrome dating back to 1998. He had a strain in January 2005. He had x-rays that were negative and had no operations. He was on a profile for running. He would wear a brace episodically, but did not use a cane. At that time, he had no daily pain with his left knee. He experienced flare-ups if he ran or used the stairs. The discomfort was under the medial aspect of the knee cap and had occasional swelling with it. He denied any dislocation, subluxation or instability. He did not change his gait or walk. Flare-ups were described as 8/10 lasting about two hours. His daily limitations were to walk one mile, run one mile and decreased squatting. The Veteran underwent a second VA examination in October 2011. He was diagnosed with bilateral chondromalacia of the patella and bilateral degenerative joint disease of the knees. The examiner noted that the Veteran experienced pain with squatting and kneeling, as well as flare-ups with squatting and kneeling. Initial range of motion testing showed right knee flexion to 135 degrees with no objective evidence of painful motion and extension with zero or any degree of hyperextension and no objective evidence of painful motion. Left knee flexion measured to 135 degrees with no objective evidence of painful motion and extension with zero or any degree of hyperextension and no objective evidence of painful motion. The Veteran was able to perform repetitive use testing, but such repetitive use testing did not result in additional functional loss or range of motion in either knee. The Veteran did not have any additional limitation in range of motion following repetitive use testing nor did he have any functional loss and/or functional impairment of the knee and lower leg. There was no pain or tenderness to palpation for joint line or soft tissues of either knee. Muscle strength testing showed bilateral normal strength on flexion and extension. Joint stability testing also showed bilateral normal anterior, posterior and medial-lateral instability. There was no evidence or history of recurrent patellar subluxation/dislocation. The examiner also noted that the Veteran had patellofemoral grinding/crepitation. Imaging studies showed bilateral degenerative or traumatic arthritis of the knees. An October 2014 VA treatment record noted that the Veteran was being evaluated for bilateral knee pain. The pattern of joint symptoms had been episodic flare-ups with symptom free periods in between. Associated symptoms included swelling with recent increased pain. He was positive for arthralgias, joint stiffness and limb pain in both knees. The Veteran also had pain with range of motion in his knees, but a normal gait. There was also bilateral crepitance of the knees. Although the physician noted pain with range of motion in his knees, no range of motion test results were noted. In February 2015 the Veteran testified at a Board video conference hearing. During the Board hearing the Veteran testified that he experienced swelling in his knees which he treated with ibuprofen and ice. He also described experiencing pain with knee bending and constant knee pain. The Veteran testified that his left knee symptoms were worse than his right. In July 2015 the Veteran underwent a VA knee examination. The Veteran was diagnosed with bilateral patellofemoral pain syndrome and degenerative arthritis. He reported flare-ups of the knee and/or lower leg. The Veteran limited standing to one hour and walking to two blocks with flare-ups. He had pain and weakness/fatigability during flare or following repeated use over time with each knee. Pain was the more limiting factor. No additional loss of motion or discoordination with flares or following repeated use over time. Repeated use over time will cause knee flare-ups leading to functional restrictions. He also reported having functional loss or functional impairment of the joint. There were no sedentary restrictions, he could stand two hours, walk one mile and he avoids climbing and squatting due to knees. Initial range of motion testing showed right knee flexion of 0 to 125 degrees and extension from 125 to 0 degrees. The range of motion itself did not contribute to functional loss. Pain was noted on flexion and extension. There was also pain on weight bearing and objective evidence of localized tenderness on palpation of the joint. The pain was described as mild tenderness anterior knee directly related to his knee conditions. Initial range of motion testing also showed left knee flexion of 0 to 120 degrees and extension from 120 to 0 degrees. The Veteran’s left knee exhibited the same symptoms as the right. The Veteran was able to perform repetitive use testing with at least three repetitions, but did not result in any additional functional loss or range of motion for his bilateral knees. The Veteran’s functional ability was significantly limited by pain, fatigue, weakness and lack of endurance with repeated use over a period of time. The functional limitation of the right knee was described in terms of range of motion as flexion from 0 to 125 degrees and extension from 125 to 0 degrees. The functional limitation of the left knee was described in terms of range of motion as flexion from 0 to 120 degrees and extension from 120 to 0 degrees. Identical symptoms and range of motion measurements were found for the bilateral knees during flare-ups. Muscle strength testing revealed bilateral normal strength on forward flexion and extension. There was no muscle atrophy present. Furthermore, there was no ankylosis, history of recurrent subluxation or history of lateral instability in the bilateral knees. There was history of recurrent effusion. Joint instability testing did not show any joint instability bilaterally. The Veteran did not have, or ever had, recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The examiner also noted that both knees appeared normal with slight prominence tibia tubercle in both knee. There was no swelling or laxity in the knees. Crepitus was found in both patella with range of motion in the knees. There was no additional weakness, fatigue, discoordination or additional loss of motion with repetition three times in both knees. No patella laxity was found in either knee. The only assistive device noted was regular use of a compression sleeve. Prior x-rays were reviewed and revealed degenerative joint disease. The examiner also noted that the examination, and the Veteran’s history, failed to reveal any evidence of lateral instability or subluxation in either knee. The Veteran most recently underwent a VA knee examination in August 2017. He was diagnosed with bilateral patellofemoral pain syndrome and degenerative arthritis. The Veteran described continued pain with walking one and a half miles or repetitive squatting. Current symptoms included aching and problems using stairs which he treated with over the counter Motrin. The Veteran denied flare-ups of the knee and/or lower leg and also denied any functional loss or functional impairment of the joint. Initial range of motion testing showed right knee flexion of 0 to 130 degrees and extension from 130 to 0 degrees. The range of motion itself did not contribute to functional loss. Pain was noted on flexion. There was no pain on weight bearing, but there was evidence of localized tenderness or pain on palpation over the patella which was described as mild and consistent with patellofemoral pain syndrome. The examiner also found evidence of crepitus in the right knee. Initial range of motion testing also showed left knee flexion of 0 to 130 degrees and extension from 130 to 0 degrees. There was evidence of pain on flexion. However, there was no evidence of pain on weight bearing or crepitus. The examiner did note objective evidence of localized tenderness or pain on palpation of the anterior knee which was mild and was constituent with the condition. The Veteran was able to perform repetitive use testing with at least three repetitions but there was no additional functional loss or range of motion. The examination was not being conducted during a flare-up so the examiner could not describe functional loss during flare-ups in terms of range of motion without resorting to mere speculation. The examiner did not find any additional factors contributing to his disability. Muscle strength testing also revealed normal strength in flexion and extension of the bilateral knees. There was no muscle atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability or recurrent effusion noted during joint stability tests. Joint stability testing found no anterior, posterior, medial or lateral instability of either knee. The Veteran did not have, or ever had, recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. There was also no history of meniscal conditions, surgical procedures or assistive devices noted. Functional impact included avoiding walking over one and half miles and repetitive squatting or stairs. There was also no objective evidence of pain on non-weight bearing in either knee. Passive range of motion testing was the same as active range of motion for both knees and there was no objective evidence of pain on passive range of motion testing. The Board finds that throughout the entire period on appeal that the Veteran’s bilateral knee patellofemoral syndrome with degenerative joint disease is most consistent with a 10 percent disability rating. The Veteran does not have and has not had ankylosis, instability, symptomatic removal of semilunar cartilage, locking, an impairment of the tibia or fibula, or genu recurvatum of the left knee at any point, so a rating under DC 5256, 5257, 5258, 5259, 5262, or 5263 is not warranted. Although the July 2015 VA examination noted a history of recurrent effusion, this is the only mention of recurrent effusion and it is not supported by the record. The Veteran currently has a 10 percent rating under DC 5010, arthritis due to trauma, but he argues that he should have a higher rating. Although the Veteran has arthritis confirmed by x-ray evidence of the bilateral knees, which is sufficient to warrant a 10 percent disability rating for each knee, there is no evidence that the Veteran has ever experienced an incapacitating episode due to his bilateral knee arthritis. Therefore, he does not meet the criteria for a 20 percent disability rating under DC 5003 – 5010. None of the range of motion findings supports a rating higher than 10 percent under either DC 5260 or DC 5261. The 10 percent rating under DC 5260 was originally assigned based on painful motion (i.e. the DeLuca factors), because a 10 percent evaluation may be assigned for painful or limited motion of a major joint and may be also be applied once to multiple joints if there is no limited or painful motion. See March 2012 Rating Decision. The medical evidence during the appeal period documents flexion of at least 120 degrees in the right knee and 120 degrees in the left and extension to zero degrees from on all range of motion testing, including after repetitive use testing. Although all of the examination reports indicate there are flare-ups, there is no additional limitation of motion after repetitive use testing. Given the ranges of motion of at least 120 degrees of flexion in the right knee and 120 degrees of flexion in the left knee and extension to zero degrees in both knees, the Board finds that the symptoms of weakness, fatigue, and pain warrant, at most, a 10 percent rating under DC 5260 and 5261. The limitations, particularly given the range of motion testing (including repetitive testing) results at both VA examinations and elsewhere in the medical records, do not meet or more closely approximate the limitations that would be associated with a flexion limited to 30 degrees (the criteria for a 20 percent rating under DC 5260) or extension limited to 15 degrees (the criteria for a 20 percent rating under DC 5261). Rather, the currently assigned 10 percent rating under DC 5260 and 5261 adequately accounts for the limitations of motion, including after considering the DeLuca factors, documented in the medical records and VA examinations. The Veteran’s bilateral knee disabilities do not more closely approximate the criteria for any rating in excess of 10 percent at any time during the period on appeal. For the foregoing reasons, entitlement to a compensable rating for bilateral knee patellofemoral syndrome with degenerative joint disease (other than the already assigned 10 percent rating under DC 5014) is denied. 38 C.F.R. §§ 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5256-5263; Hart, 21 Vet. App. 505. The Board finds that even when taking into consideration additional impairment caused by factors such as pain, weakness, and fatigability the Veteran’s bilateral knee disabilities is not manifested by limitation of flexion to at least 30 degrees to warrant the next higher schedular rating of 20 percent under DC 5260. The Veteran has reported that he has experienced flare-ups caused by running, squatting and climbing. However, he was not experiencing a flare-up at the time of any of the VA rating examinations or at the time of any treatment at a VA outpatient treatment clinic. The Board also notes that in the absence of ankylosis, a rating under DC 5256 is not warranted and in the absence of evidence of dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, a rating under DC 5258 is not warranted. Similarly, there is no genu recurvatum or impairment of the tibia and fibula with malunion which would warrant ratings under DCs 5263 and 5262. The Board has considered whether staged ratings should be assigned but at no time during this appeal has the Veteran’s service-connected bilateral knee DJD caused such symptomatology as to be productive of functional impairment warranting, or even approximating, an evaluation in excess of 10 percent. Thus, staged ratings are not warranted. Accordingly, the Board finds that the greater weight of the evidence is against the Veteran’s claim, and so the doctrine of the favorable resolution of all reasonable doubt is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From this it must be concluded that   entitlement to a rating in excess of 10 percent for bilateral knee patellofemoral syndrome with degenerative joint disease must be denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel