Citation Nr: 1815243 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 13-29 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial rating for bilateral knee valgus instability with degenerative changes. 2. Entitlement to an increased rating in excess of 10 percent for bilateral patellofemoral syndrome with degenerative changes. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1995 to February 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2012 and August 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. FINDINGS OF FACT 1. The Veteran's bilateral knee valgus instability is manifested by moderate symptoms. 2. The Veteran's bilateral patellofemoral syndrome was manifested by a decreased range of motion based on flexion no worse than 90 degrees and no further functional impairment noted after repetitive testing. CONCLUSIONS OF LAW 1. The criteria for a higher rating for bilateral valgus instability have been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5257 (2017). 2. The criteria for a disability rating in excess of 10 percent for the service-connected bilateral knee patellofemoral syndrome of the right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, DC 5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.20 (2016). When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102 (2016); Mittleider v. West, 11 Vet. App. 181, 182 (1998). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2014). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson, 12 Vet. App. 119 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran's entire history is to be considered when making a disability determination. 38 C.F.R. § 4.1 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2013); see Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). DC 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Under DC 5260, a noncompensable rating is assigned for limitation of flexion of the leg to 60 degrees. A 10 percent rating is warranted for limitation of flexion of the leg to 45 degrees. A 20 percent rating is warranted for limitation of flexion of the leg to 30 degrees. A 30 percent rating is warranted for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a. For comparison, normal range of motion in the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, 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. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 do not apply to ratings under DC 5257. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Bilateral Knee Valgus Instability The Veteran's bilateral knee valgus instability is current rated under DC 5257. As noted above, DC 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. The Veteran has reported over the years that his knees are instable and that they give out. The Veteran reported doing daily activities such as walking, taking the stairs, and getting up from his chair caused him pain in both his knees. A January 2011 examiner noted the Veteran had mild valgus instability in his bilateral knees. An October 2017 examiner also noted the Veteran's diagnosis of bilateral valgus instability, noting the Veteran suffered from moderate symptoms from the degenerative changes in both his knees. Therefore, the Board finds a rating of 20 percent rating is warranted. The post-service medical evidence would not support a higher rating. Bilateral Patellofemoral Syndrome The Veteran is currently rated under DC 5010-5060 for his bilateral knee patellofemoral syndrome due to functional loss due to painful motion. In order to qualify for the next higher 20 percent rating, the evidence would have to show the Veteran's flexion was limited to 30 degrees. The preponderance of the evidence does not show the Veteran's flexion is so limited. The Board acknowledges the statements made by the Veteran, his wife, and his friends, that the Veteran's knees constantly bother him. However, while the Veteran is competent to report his symptoms of a disability, he is not competent to opine on matters requiring medical knowledge, such as determining his knee flexion capacity. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The objective medical evidence does not show either of the Veteran's knees is limited to 30 degrees of flexion either before or after repetitive use testing or during a flare-up. (See August 2013, August 2015, September 2016, October 2017 examination.) As a result, while he knees may, in fact, bother him a great deal, it is important for the Veteran to understand that this is the basis for the current findings. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board has reviewed the Veteran's file and notes the Veteran does not have knee ankylosis, cartilage issues, limitations of extension sufficient to warrant a higher rating, or tibia or fibula problems. Therefore, Board finds no other applicable rating criteria that would provide a higher rating or an additional rating. The fact that the Veteran has a problem is not in dispute, it is only the degree. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C.A. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). Lastly, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the veteran or reasonably raised by the evidence of record). ORDER A rating of 20 percent, but no greater, for bilateral valgus instability is granted subject to the laws and regulations governing monetary awards. An increased rating in excess of 10 percent for bilateral patellofemoral syndrome with degenerative changes is denied. John J. Crowley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs