Citation Nr: 18153639 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-55 340 DATE: November 28, 2018 ORDER A 10 percent initial disability rating, but no higher, for right knee patellofemoral pain syndrome is granted, subject to the laws and regulations governing monetary benefits. FINDING OF FACT The Veteran’s right knee patellofemoral pain syndrome has been manifested by painful motion. CONCLUSION OF LAW The criteria for an initial rating of 10 percent, but no higher, for patellofemoral pain syndrome of the right knee have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.20, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5257; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1990 to July 2012. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Initial rating patellofemoral pain syndrome, right knee The Veteran contends that he is entitled to a compensable rating for his service-connected patellofemoral pain syndrome of his right knee because of his constant pain and lateral instability. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, 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. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Board has considered whether any staged rating periods are warranted. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. 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 upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable diagnostic code. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. The Veteran seeks entitlement to a compensable initial disability rating for his right knee patellofemoral pain syndrome. His right knee condition is currently rated under DC 5257. 38 C.F.R. §§ 4.27, 4.71(a), DC 5257. His right knee was also rated according to limitation of flexion under DCs 5260 and 5261. Id., DCs 5260, 5261. Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71(a), Diagnostic Code 5257. DCs 5260 and 5261 assign disability ratings based upon limitation of motion of the leg. Under DC 5260, limitation of flexion to 60 degrees is noncompensable, limitation of flexion to 45 degrees warrants a 10 percent disability rating, limitation of flexion to 30 degrees warrants a 20 percent disability rating, and limitation of flexion to 15 degrees warrants a maximum schedular 30 percent disability rating. Id., DC 5260. Under Diagnostic Code 5261, a 10 percent disability rating is allowed when extension is limited to 10 degrees, a 20 percent disability rating is allowed when extension of the leg is limited to 15 degrees, a 30 percent disability rating is warranted for extension limited to 20 degrees, a 40 percent disability rating is warranted for extension limited to 30 degrees, and a 50 percent disabling rating is warranted for extension limited to 45 degrees. Id., DC 5261. With regards range of motion, for rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. Id., Plate II. In the June 2012 VA examination, the examiner noted that there was no objective evidence of painful motion in the right knee as the right knee flexion was 140 degrees or greater with the normal endpoint is 140 degrees. However, in that same examination report, the examiner noted that the Veteran has “tenderness or pain to palpation for the joint line or soft tissues of both the knees.” The Veteran has reported pain in his right knee; although, examination of his right knee objectively shows no functional loss, functional impairment, or limitation on range of motion. The knee flexion and extension were at normal strength, according to the VA examiner. The Veteran additionally reported that he has lateral instability in his right knee. The VA examiner conducted tests and the objective tests were normal for all joint stability tests, including the anterior instability, posterior instability, and medial-lateral instability tests. The VA examiner opined that the Veteran has “crepitus and tenderness on compression of the patella along the femoral groove for both knees.” Imaging studies were performed, and there was no degenerative or traumatic arthritis documented for the right knee. Nevertheless, the VA examiner diagnosed the Veteran as having patellofemoral pain syndrome, and opined that his knee condition does not impact his ability to work. When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Such inquiry is not to be limited to muscles or nerves. Limitation of motion determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint’s range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. Given the evidence of record, and as discussed below, after resolving any reasonable doubt in favor of the Veteran, the Board finds that a 10 percent initial rating is warranted for the Veteran’s right knee patellofemoral pain syndrome disability. The Board is mindful that the Veteran has consistently reported right knee pain. As noted above, the intent of the rating schedule is to recognize painful motion with joint pathology as productive of disability, and painful motion is an important factor of joint disability which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran is competent to report any observable symptoms, including painful limitation. Therefore, the Board has resolved any reasonable doubt in favor of the Veteran and finds that his right knee patellofemoral pain syndrome disability has resulted in compensable painful motion and that he is entitled to a minimum 10 percent disability rating, but no higher. The Board has also considered whether a disability rating in excess of 10 percent is warranted for any period on appeal. As noted, the Veteran’s right knee condition has not resulted in compensable limitation of motion under the applicable diagnostic codes for any period on appeal. 38 C.F.R. § 4.71(a), DCs 5260-61. Additionally, an increased disability rating is not warranted under alternate diagnostic codes regarding disabilities of the knee. There was no finding of recurrent subluxation or lateral instability upon VA examination. 38 C.F.R. § 4.71(a), DC 5257. The record also does not suggest that the Veteran has ankylosis, dislocation of semilunar cartilage, symptomatic removal of semilunar cartilage, current impairment of the tibia and fibula, or genu recurvatum, therefore DCs 5256, 5258, 5259, 5262, and 5263 are not for application. 38 C.F.R. § 4.71(a), DCs 5256, 5258, 5259, 5262, 5263. (Continued on the next page)   As such, after resolving any reasonable doubt in favor of the Veteran, the Board finds that the evidence is in favor of an initial 10 percent rating, but not higher, for the Veteran’s right knee patellofemoral pain syndrome disability. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. Chu Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jones Council, Associate Counsel