Citation Nr: 18152304 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 10-47 354 DATE: November 21, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent prior to June 26, 2017, for patellofemoral syndrome left knee for accrued benefits purposes is denied. Entitlement to an initial disability rating in excess of 10 percent prior to June 26, 2017, for patellofemoral syndrome right knee for accrued benefits purposes is denied. Entitlement to a disability rating in excess of 40 percent on and after June 26, 2017, for left knee limitation of extension for accrued benefits purposes is denied. Entitlement to a disability rating in excess of 30 percent on and after June 26, 2017, for right knee limitation of extension for accrued benefits purposes is denied. FINDINGS OF FACT 1. Prior to June 26, 2017, the Veteran’s patellofemoral syndrome left knee was manifested by subjective complaints of pain with motion, intermittent swelling, stiffness, and limitation of flexion to 110 degrees. 2. Prior to June 26, 2017, the Veteran’s patellofemoral syndrome right knee was manifested by subjective complaints of pain with motion, intermittent swelling, stiffness, and limitation of flexion to 90 degrees. 3. On and after June 26, 2017, the Veteran’s left knee was manifested by intermittent swelling, stiffness, and limitation of extension to 30 degrees. 4. On and after June 26, 2017, the Veteran’s right knee was manifested by intermittent swelling, stiffness, and limitation of extension to 25 degrees. CONCLUSIONS OF LAW 1. Prior to June 26, 2017, the criteria for a rating in excess of 10 percent for patellofemoral syndrome left knee for accrued benefits purposes were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003. 2. Prior to June 26, 2017, the criteria for a rating in excess of 10 percent for patellofemoral syndrome right knee for accrued benefits purposes were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5003. 3. On and after June 26, 2017, the criteria for a rating in excess of 40 percent, for left knee limitation of extension for accrued benefits purposes have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5003, 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263. 4. On and after June 26, 2017, the criteria for a rating in excess of 30 percent for right knee limitation of extension for accrued benefits purposes have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5003, 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to November 2008. The Veteran died in February 2018. In July 2018, the Agency of Original Jurisdiction (AOJ) determined the Appellant met basic eligibility for substitution as the spouse of the Veteran and substituted the Appellant as the claimant in the Veteran’s appeal for purposes of adjudicating the claims to completion. See 38 U.S.C. § 5121A. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office. These matters were previously before the Board in March 2014, June 2015, June 2017, and January 2018. In January 2018, in pertinent part, the Board remanded the claims for further development, including compliance with the June 2017 remand to obtain an adequate medical examination in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran and his spouse testified before a Veterans Law Judge (VLJ) at a June 2011 videoconference hearing, and a transcript of the hearing has been associated with the record. In December 2016, the Veteran and his representative were advised that the VLJ who conducted the June 2011 hearing was unavailable to participate in a decision in the Veteran’s appeal and that although the Board could decide on the record, the Veteran could request another Board hearing if desired. Neither the Veteran nor his representative responded to the December 2016 notice or requested an additional Board hearing. As such, a new hearing was not required and the Board proceeded with adjudication of the Veteran’s appeal. As noted above, these matters were previously remanded by the Board to obtain outstanding records of treatment and to afford the Veteran a new examination. The record indicates the Veteran received no additional VA treatment nor was any private treatment indicated following the Remand. Unfortunately, the Veteran died before the requested examination could be undertaken. The Board is cognizant that, in Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, retroactive motion testing cannot be performed to determine the range of motion in the manner now required by Correia, and therefore, an examiner’s assessment of the range of motion findings required by that case would amount to pure speculation. The Board also acknowledges that the January 2016 and June 2017 examiners indicated they could not described any additional range of motion limitations during flare-ups or from repetitive use over time without resorting to speculation. While the Board is cognizant of Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), it notes that the January 2016 examiner noted functional loss and impairment was due to pain, not range of motion, and the June 2017 examiner described the additional limitation as increased pain and swelling with decreased mobility. Given the circumstances, the Board finds this sufficiently addresses the functional loss experienced by the Veteran during flare-ups and from repetitive use over time. In light of there being no outstanding treatment records, and the further adjudicatory actions taken by the AOJ, the Board finds that there has been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability, therefrom, and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126–27 (1999). Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, if a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Degenerative arthritis established by x-ray findings is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, 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 DC 5003. Traumatic arthritis is rated as degenerative arthritis. DC 5010. Synovitis is also rated as degenerative arthritis. Limitation of motion of the knee is rated under DCs 5260 and 5261. Under DC 5260, a 0 percent (noncompensable) rating is assigned for flexion limited to 60 degrees. A rating of 10 percent requires limitation of flexion to 45 degrees. A rating of 20 percent requires limitation of flexion to 30 degrees, and a rating of 30 percent requires limitation of flexion to 15 degrees. Under DC 5261, a rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. 38 C.F.R. § 4.71a. To adequately compensate Veterans for all functional impairment, the VA’s General Counsel has held that separate ratings may be assigned under Diagnostic Codes 5260 and 5261 for disability of the same joint where a Veteran has both limitation of flexion and a limitation of extension of the same leg. VAOPGCPREC 9-2004. 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. Similarly, 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.”). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). 1. Entitlement to an initial disability rating in excess of 10 percent prior to June 27, 2016, for patellofemoral syndrome of the left and right knees for accrued benefits purposes The Veteran’s service-connected knee disabilities were rated as patellofemoral syndrome of the left and right knees and assigned initial 10 percent ratings under DC 5003, effective December 1, 2008, the first day after his discharge from service. The Appellant contends higher ratings are warranted. A June 1995 service treatment record notes a right knee injury with constant pain of low to medium intensity. The June 1995 service treatment record shows no giving way or locking, with a gait within normal limits. The provider noted a range of motion of 0 to 115 degrees with tenderness of the semitendinosus tendon and an edema over the anterolateral knee. A July 1995 service treatment record indicated the right knee continued to cramp with lots of walking, range of motion of 0 to 130 degrees, no edema, and mild tenderness and pain to distal semitendinous. Treatment records from 2006 generally note subjective complaints of bilateral knee pain. A July 2006 treatment record notes treatment for right knee pain following playing basketball. The July 2006 service treatment records notes the Veteran was able to walk but felt a ‘popping’ sensation in knee. The July 2006 treatment note further reports full range of motion of the right knee with no effusion and mild crepitus. A September 2006 x-ray notes mild osteophytic degenerative changes assessed as patellofemoral syndrome, and an October 2006 treatment record notes localized joint pain in the knees. A December 2006 service treatment record notes continued popping of the right knee with no giving way or swelling and soreness after activity. A December 2006 treatment record also notes a four out of 10 for pain, noted as moderate. The Veteran underwent VA examination in November 2008. The Veteran complained of right knee intermittent pain and swelling secondary to stress of the knee, mild crepitus, and occasional locking of the knee. The Veteran reported flare-ups of the right knee precipitated by excessive activity and characterized as an increased dull ache of three to four on a zero to 10 pain scale. The November 2008 examination indicates a decreased range of motion for flexion of the right knee to 120 degrees and full extension to zero degrees, with no painful motion or instability. The Veteran complained of left knee stiffness, mild crepitus, and swelling following prolonged standing. The Veteran reported flare-ups of the left knee precipitated by knee strain and characterized as an intensified dull ache of a three to four on a one to ten pain scale. The examination indicates a decreased range of motion for flexion of the left knee to 132 degrees and full extension to zero degrees. The November 2008 examiner noted that x-ray findings showed minimal patellar spurring. The November 2008 examiner noted that additional limitation of function, due to flare-ups, could not be determined without resorting to mere speculation. Finally, the November 2008 examiner further noted no discomfort or difficulty with range of motion testing, nor effusion, edema, erythema, tenderness, palpable deformities, or instability on examination. September 2014 treatment records note the Veteran received treatment for right knee pain and swelling for one week with no known injury, and he denied pain with rest, history of gout, calf pain, or prolonged travel. September 2014 treatment records also note subjective complaints of pain in both knees as well as reference a small suprapatellar joint effusion, pain worse with flexion but ambulatory, and intermittent tingling. The Veteran underwent additional VA examination in January 2016. On the January 2016 VA examination, the Veteran reported constant pain that was distracting in severity, increased symptoms with long periods of sitting, and daily stiffness. The Veteran also reported flare-ups characterized as occasional locking of the knee once every two weeks with increasing frequency. The Veteran further reported difficulty dressing due to stiffness and pain, use of a cart for support if his wife was unable to shop, inability to mow the lawn, and distracting pain with walking and driving. The January 2016 examination report shows flexion from zero to 90 degrees and extension from 90 to zero degrees for the right knee and flexion from zero to 110 degrees and extension from 110 to zero degrees for the left knee. Regarding the right knee, the January 2016 examiner reported objective pain with both flexion and extension, pain with weight bearing, peripatellar discomfort with palpation, and evidence of crepitus in the right knee. Regarding the left knee, the January 2016 examiner reported objective pain with flexion and extension, pain with weight bearing, and mild peripatellar tenderness. The January 2016 examiner noted that the Veteran was able to perform repetitive use testing with at least three repetitions, with no additional functional loss or range of motion. The January 2016 examiner noted an inability to say, without mere speculation, whether pain, weakness, fatiguability, or incoordination limits functional ability with repeated use over a period of time or during flare-ups because the examiner would need to be present on these occasions to objectively measure any changes from baseline functioning. The January 2016 examiner noted that there was no muscle atrophy, ankylosis, history of recurrent subluxation, history of lateral instability, history of recurrent effusion, joint instability, or a meniscus condition. Additionally, the January 2016 examiner noted that there was no recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The January 2016 examiner noted no use of any assistive devices. The January 2016 examiner indicated there was degenerative or traumatic arthritis documented. Finally, the January 2016 examiner indicated that the Veteran’s bilateral knee conditions impact his ability to perform any occupational task that requires long sitting in place, standing in place, or climbing multiple stairs. Considering the evidence in light of applicable rating criteria and rating principles delineated above, the Board finds that the preponderance of the evidence is against ratings in excess of 10 percent prior to June 26, 2017, for patellofemoral syndrome of the left and right knees. Here, the objective evidence for the Veteran’s knees does not reflect flexion limited to 45 degrees or less, or extension limited to 15 degrees or more during this period. Specifically, prior to a January 2016 VA examination, the lowest right knee limitation of flexion of record is 115 degrees, as noted in June 1995, which does not meet the criteria for a compensable rating under either DC 5260. Moreover, prior to the January 2016 VA examination, left knee flexion was noted as limited to 132 degrees and full extension. However, during both the November 2008 and the January 2016 VA examinations, the Veteran did report flare-ups with some functional loss. As discussed above, there were no statements by the examiners that estimated any extent of additional functional impairment or loss during flare-ups; however, the Board notes the January 2016 examiner noted that range of motion does not itself contribute to functional loss; instead, pain causes functional loss. Accordingly, in addition to objective range of motion testing results, the Board has also considered the extent of likely additional functional loss, primarily due to pain, during flare-ups. During the November 2008 examination, the Veteran described the pain associated with knee-straining physical activity, such as jogging or basketball, as usually a one to two. Describing a flare-up, the Veteran reported an increase to a dull ache of three to four on a zero to 10 pain scale also precipitated by excessive activity such as running. Notably, the Veteran reported that ambulation seems to help the pain and stiffness, and the November 2008 examiner noted no discomfort or difficulty with range of motion testing. While the examiner was unable to say without mere speculation whether pain, weakness, and fatigability or incoordination significantly limited functional ability with flare-ups, the Veteran noted flare-ups usually last 24 hours and are alleviated with Motrin, ice, elevation, and rest. During the January 2016 examination, the Veteran reported constant pain that was distracting in severity to the point that it caused trouble with his new job. The Veteran noted that walking seems to decrease pain symptoms while long sitting increased symptoms. In light of the pain, the Veteran reported functional loss such as an inability to mow the lawn and difficulty using the toilet, dressing, driving, and shopping. The Veteran also noted increased locking of the knees. The Veteran is competent to report the symptoms of his service-connected patellofemoral syndrome of the left and right knees (to include following repetitive use and during flare ups) and the Board has no legitimate basis to challenge the credibility of his reports. Given the Veteran’s reports as to the severity of his pain during flare-ups resulting in the need to elevate his knees; take medication; apply ice; wait up to 24 hours for the pain to subside; and difficulty sitting, dressing, driving, shopping; the Board finds that the criteria for a minimum compensable rating for painful motion of knee has been met, but no higher, for accrued benefits purposes. See 38 C.F.R. § 4.59. In sum, the Board has considered the Appellant’s contention that the Veteran’s limitation of flexion and extension warrant higher initial ratings but finds that prior to June 26, 2017, the evidence of record does not establish that the Veteran met the criteria for 20 percent ratings under DCs 5260 or 5261 as his overall level of disability did not demonstrate limitation of flexion to 30 degrees and limitation of extension to 15 degrees. See Thompson, supra. However, the Board finds the Veteran’s functional impairment due to pain meets the criteria for minimum compensable ratings for degenerative arthritis prior to June 26, 2017, for accrued benefits purposes. See 38 C.F.R. § 4.59, 4.71a, DCs 5003, 5260, 5261. The Board further finds that no higher or additional rating(s) is/are assignable at any time pertinent to the current claim. The evidence does not show recurrent subluxation or lateral instability, any knee ankylosis, cartilage removal, tibia or fibula impairment, or genu recurvatum at any pertinent point. See 38 C.F.R. § 4.71a, DCs 5256, 5257, 5258, 5259, 5262-5263. Accordingly, entitlement to initial disability ratings in excess of 10 percent prior to June 26, 2017, for patellofemoral syndrome of the left and right knees for accrued benefits purposes are not warranted. 2. Entitlement to disability ratings in excess of 40 percent and in excess of 30 percent, on and after June 26, 2017 for left knee disability and right knee disability, respectively, for accrued benefits purposes Effective June 26, 2017, the Veteran’s service-connected left knee and right knee disabilities were assigned a 40 percent rating and a 30 percent rating, respectively, under DC 5261. The Appellant contends entitlement to increased ratings are warranted. The Veteran underwent a supplemental VA examination in June 2017. On the June 2017 examination, the Veteran reported flare-ups characterized as more pain, less mobility, and swelling of both knees. The Veteran also reported functional loss or impairment characterized as less mobility, including an inability to stand, walk, or climb for any period of time. For the right knee, the June 2017 examination shows flexion from 25 to 140 degrees and extension from 140 to 25 degrees, limiting the Veteran’s ability to bend or squat at the knee. For the left knee, the June 2017 examination shows flexion from 30 to 140 degrees and extension from 140 to 30 degrees, also limiting the Veteran’s ability to bend or squat at the knee. The June 2017 examiner noted pain with both flexion and extension but no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The June 2017 examiner noted pain with weight bearing but no evidence of crepitus or pain with non-weight bearing. The June 2017 examiner noted the Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The June 2017 examiner noted an inability to say without mere speculation whether pain, weakness, fatiguability or incoordination limits functional ability with repeated use over a period of time or during flare-ups because the Veteran was not being examined after repeated use over time or during a flare-up. The June 2017 examiner noted less movement than normal, disturbance of locomotion, and interference with standing as additional contributing factors of the disabilities. The June 2017 examiner noted that there was no muscle atrophy, ankylosis, history of recurrent subluxation, history of lateral instability, history of recurrent effusion, joint instability, or a meniscus condition. Additionally, the June 2017 examiner noted that there was no recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The June 2017 examiner noted occasional use of a cane as an assistive device. Finally, the June 2017 examiner indicated that the Veteran’s bilateral knee conditions impact his ability to perform any occupational task that requires bending, squatting, lifting, or picking up items from the floor, and prolonged standing, walking, or climbing. Considering the evidence in light of applicable rating criteria and rating principles delineated above, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the left knee and a rating in excess of 30 percent for the right knee on and after June 26, 2017 for accrued benefits purposes. Here, the record does not demonstrate objective evidence that flexion of either knee has been limited to 60 degrees or less, that extension of the left knee has been limited to 45 degrees, or that extension of the right knee has been limited to 30 degrees on or after June 26, 2016. The Board recognizes that the Veteran reported flare-ups during the June 2017 examination and finds his statements credible. In this respect, there is no statement in terms of range of motion describing additional functional loss due to flare-ups or repetitive use over a period of time. However, the Board finds the competent medical evidence of record does not support a finding that the Veteran experiences additional limitation of extension or flexion to support increased ratings. In this case, the evidence does not show that other symptoms, such as lack of endurance or fatigability, have so functionally limited the Veteran’s range of motion to warrant ratings in excess of those assigned for the period on appeal. Thus, the Board further finds that the current 40 percent and 30 percent ratings adequately compensate any functional impairment attributable to the service-connected knee disabilities. See 38 C.F.R. §§ 4.41, 4.10. The Board further finds that no higher or additional rating(s) is/are assignable at any time pertinent to the current appeal. The evidence does not show recurrent subluxation or lateral instability, any knee ankylosis, cartilage removal, tibia or fibula impairment, or genu recurvatum at any pertinent point. See 38 C.F.R. § 4.71a, DCs 5256, 5257, 5258, 5259, 5262, and 5263. Accordingly, a disability rating in excess of 40 percent for the left knee based on limitation of extension and a rating in excess of 30 percent for the right knee based on limitation are not warranted on and after June 26, 2017, for accrued benefits purposes. M. M. CELLI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Aoughsten, Associate Counsel