Citation Nr: 1815239 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 11-27 977 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating greater than 10 percent for chondromalacia patella and degenerative joint disease of the right knee. 2. Entitlement to an initial compensable rating for limitation of extension of the right leg. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from June 1989 to July 2009, including in combat in Iraq in support of Operation Iraqi Freedom. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted, in pertinent part, the Veteran's claim of service connection for chondromalacia patella and degenerative joint disease of the right knee (which was characterized as right knee degenerative arthritic changes and chondromalacia patella), assigning a 10 percent rating effective August 1, 2009. The Veteran disagreed with this decision in September 2009. He perfected a timely appeal in October 2011. In January 2015 and in April 2017, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the Veteran should be scheduled for appropriate examination to determine the nature and etiology of his service-connected right knee and right leg disabilities. This examination occurred in May 2017. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In a June 2015 rating decision, the AOJ granted, in pertinent part, a claim of service connection for limitation of extension of the right leg, assigning a zero percent rating effective January 25, 2015. In July 2016, the Veteran notified VA that he had moved to the jurisdiction of the RO in Waco, Texas. Accordingly, that facility has jurisdiction in this appeal. The Veteran also appointed his current service representative to represent him before VA by filing a properly executed VA Form 21-22 in July 2016. The Board notes that the Agency of Original Jurisdiction (AOJ) adjudicated this Veteran's claim as part of the Benefits Delivery at Discharge (BDD) program (now known as the Pre-Discharge Program or Joint VA/Department of Defense Disability Evaluation System (DES)). This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The record evidence shows that the Veteran's service-connected chondromalacia patella and degenerative joint disease of the right knee is manifested by, at worst, right knee flexion limited to 120 degrees, crepitus, stiffness, and popping. 2. The record evidence shows that, effective May 23, 2017, the Veteran's service-connected limitation of extension of the right leg is manifested by, at worst, right knee extension from 120 to 0 degrees and difficulty climbing up stairs and running on hard surfaces. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent for chondromalacia patella and degenerative joint disease of the right knee have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003 (2017). 2. The criteria for an initial 10 percent rating effective May 23, 2017, for limitation of extension of the right leg have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5003-5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that his service-connected chondromalacia patella and degenerative joint disease of the right knee and his service-connected limitation of extension of the right leg are both more disabling than currently (and initially) evaluated. Factual Background and Analysis The Board finds that the preponderance of the evidence is against granting the Veteran's claim for an initial rating greater than 10 percent for chondromalacia patella and degenerative joint disease of the right knee. Despite the Veteran's assertions to the contrary, the record evidence does not show that this disability is manifested by degenerative arthritis with x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations (as is required for a 20 percent rating under DC 5003) at any time during the appeal period. See 38 C.F.R. § 4.71a, DC 5003 (2017). The record evidence shows instead that the Veteran's service-connected chondromalacia patella and degenerative joint disease of the right knee is manifested by, at worst, right knee flexion limited to 120 degrees, crepitus, stiffness, and popping (as seen on VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) in May 2017). For example, the Veteran's service treatment records show that, at a pre-discharge VA examination completed as part of the BDD process in March 2009, prior to his separation from service in July 2009, the Veteran's complaints included patellofemoral syndrome. Physical examination of the knees showed tenderness to palpation, a reduced range of motion, pain on repetitive range of motion testing, and no effusion. An magnetic resonance imaging (MRI) scan taken in July 2007 was reviewed and showed degenerative changes in the patellar cartilage. Range of motion testing of the right knee showed flexion to 135 degrees actively and to 140 degrees passively and extension was within normal limits. The diagnoses included patellar chondromalacia of the right knee. The post-service evidence also does not support granting the Veteran's higher initial rating claim for chondromalacia patella and degenerative joint disease of the right knee. The Board notes initially that, because it previously found the April 2015 VA knee DBQ to be inadequate for VA adjudication purposes in the April 2017 remand, this examination report was not relied upon in adjudicating the Veteran's currently appealed claims. See Board remand dated April 28, 2017, at pp. 32-34. Despite the Veteran's assertions to the contrary, the record evidence shows that the symptomatology attributable to his service-connected chondromalacia patella and degenerative joint disease of the right knee has been mildly disabling throughout the appeal period. For example, on VA knee DBQ on May 23, 2017, the Veteran's complaints included right knee locking, popping, stiffness, and pain. He experienced flare-ups of right knee pain which he described as increased stiffness and popping. He also reported difficulty in running on hard surfaces. Range of motion testing of the right knee showed flexion to 120 degrees and extension from 120 to 0 degrees passively and actively which contributed to the Veteran's reported difficulty in running on hard surfaces or climbing up stairs. There was no additional limitation of motion on repetitive range of motion testing. The Veteran's right side also had instability of station, disturbance of locomotion, and interference with standing. Physical examination of the right knee showed no pain on palpation, no pain on weight-bearing, no objective evidence of crepitus, 5/5 muscle strength, no muscle atrophy, no ankylosis, and no joint instability. A history of shin splints was noted although there were no current symptoms. The diagnoses were degenerative arthritis of the right knee, limited extension of the right leg, and chondromalacia of the right knee. There is no indication in the record evidence that the Veteran experiences degenerative arthritis with x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations (as is required for a 20 percent rating under DC 5003) at any time during the appeal period. See 38 C.F.R. § 4.71a, DC 5003 (2017). It appears that the initial 10 percent rating was assigned for the Veteran's service-connected chondromalacia patella and degenerative joint disease of the right knee due to the non-compensable limitation of right knee flexion documented on his pre-discharge VA examination in March 2009. Id. The limitation of right knee flexion attributable to the Veteran's service-connected chondromalacia and degenerative joint disease of the right knee continues to be non-compensable as seen on VA knee DBQ in May 2017. Right knee flexion was to 120 degrees actively and passively at that examination whereas a 20 percent rating for limitation of knee flexion under DC 5260 requires flexion limited to 30 degrees. See also 38 C.F.R. § 4.71a, DC 5260 (2017). The Veteran also has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 10 percent for his service-connected chondromalacia and degenerative joint disease of the right knee. Accordingly, the Board finds that the criteria for an initial rating greater than 10 percent for chondromalacia and degenerative joint disease of the right knee have not been met. In contrast, the Board finds that the evidence supports assigning an initial 10 percent rating effective May 23, 2017, for limitation of extension of the right leg. The Board notes initially that, where a Veteran has a limitation of flexion and a limitation of extension, the limitations must be rated separately to compensate adequately for functional loss. This comports with the principle underlying Esteban v. Brown, 6 Vet. App. 259 (1994). See VAOPGCPREC 9-2004. The Board also notes, however, that evaluation of the same manifestation under different diagnostic codes is to be avoided. See 38 C.F.R. § 4.14 (2017). As noted above, VA pre-discharge examination in March 2009 showed that the Veteran's right knee extension was within normal limits so no limitation of motion on extension was noted at that examination. In contrast, VA knee DBQ on May 23, 2017, documented limitation of motion on right knee extension from 120 to 0 degrees passively and actively. The Veteran already is in receipt of a 10 percent rating for his service-connected chondromalacia and degenerative joint disease of the right knee based on his limitation of right knee flexion (as discussed above). The Board next notes that, under DC 5003, where the limitation of motion in a specific joint is non-compensable under an applicable DC for evaluating limitation of motion, a 10 percent rating is warranted for each such major joint impacted by the limitation of motion. See 38 C.F.R. § 4.71a, DC 5003. In this case, a minimum compensable 10 percent rating under DC 5261 requires limitation of leg extension to 10 degrees. See 38 C.F.R. § 4.71a, DC 5261. The limitation of extension in the Veteran's right knee noted on VA examination on May 23, 2017, is non-compensable under DC 5261. Id. Thus, the Board finds that an initial 10 percent rating effective May 23, 2017, for the Veteran's service-connected limitation of extension of the right leg is warranted. There is no evidence of degenerative arthritis with x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations (as is required for a 20 percent rating under DC 5003) at any time during the appeal period. See 38 C.F.R. § 4.71a, DC 5003. Nor is there any evidence that the Veteran's service-connected limitation of extension of the right leg resulted in extension limited to 10 degrees or more at any time during the appeal period as is required for an initial compensable rating under DC 5261. See 38 C.F.R. § 4.71a, DC 5261. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for an initial 10 percent rating effective May 23, 2017, for limitation of extension of the right leg is warranted. ORDER Entitlement to an initial rating greater than 10 percent for chondromalacia patella and degenerative joint disease of the right knee is denied. Entitlement to an initial 10 percent rating effective May 23, 2017, for limitation of extension of the right leg is granted. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs