Citation Nr: 1817209	
Decision Date: 03/20/18    Archive Date: 03/30/18

DOCKET NO.  12-05 103A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to a rating in excess of 10 percent for a left knee disability.

2. Entitlement to a rating in excess of 10 percent for a right knee disability.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

A. Marsh II, Associate Counsel





INTRODUCTION

The Veteran served on active duty from June 1999 to June 2002, and January 2004 to January 2007. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO).

This matter was remanded by the Board in March 2017 for further development. The requested development has been completed insofar as possible and complies with the directives of the Board remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is now ready for appellate review.


FINDINGS OF FACT

1. The Veteran's bilateral knee disability has not been manifested by flexion limited to 30 degrees in either knee.

2. The Veteran's bilateral knee disability has not been manifested by extension limited to 15 degrees in either knee.

3. The Veteran has not had ankylosis, instability, recurrent subluxation, symptomatic removal of semilunar cartilage, or impairment of the tibia and fibula of either knee.


CONCLUSIONS OF LAW

1. The criteria for a rating greater than 10 percent for patellofemoral syndrome of the right knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003, 5260, 5261 (2017). 

2. The criteria for a rating greater than 10 percent for patellofemoral syndrome of the left knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003, 5260, 5261 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.	Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).




II. Increased Ratings for Bilateral Knee Patellofemoral Syndrome

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. 

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.

The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010).

The Veteran filed a March 2010 claim for an increased rating for his bilateral knee disability. The Veteran asserts that his bilateral knee disability has worsened since the December 2007 rating decision granting service connection.  The Veteran's right and left knee disabilities have been assigned initial 10 percent disability ratings for each knee pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion). These 10 percent ratings for each knee have remained in effect since January 12, 2007, the day his original service connection claim was received by the RO.

Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II.

Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and, a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. 

Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261.

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40  and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206   (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 

Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43   (2011).

With any form of arthritis, painful motion is an important factor of disability. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Moreover, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011).

The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered in assigning an evaluation for degenerative or traumatic arthritis under Diagnostic Code 5003 or 5010. Rating personnel must consider functional loss and clearly explain the impact of pain on the disability. VAOPGCPREC 9-98.

The Veteran's current 10 percent ratings for each knee were awarded pursuant to 38 C.F.R. § 4.59 and Burton, 25 Vet. App. 1, which together held that joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint, even if arthritis is not present. The Veteran's patellofemoral syndrome in both knees was noted to be painful on multiple occasions in the record; hence, he was assigned the minimum compensable 10 percent ratings for each knee under Diagnostic Code 5260 for limitation of flexion.

The Veteran's service-connected bilateral knee condition has also been alternatively diagnosed as osteoarthritis and degenerative arthritis. See December 2011 and May 2017 VA knee examinations. Degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved, just as the Veteran's service-connected patellofemoral syndrome has been in the present case. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. In any event, reasonable doubt will be resolved in the Veteran's favor, and the Board will attribute all of the Veteran's knee symptoms documented in the record to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52, 698 (Oct. 8, 1996)).

However, upon review, the evidence of record does not support an increased initial rating above the 10 percent assigned for each knee for the Veteran's patellofemoral syndrome / arthritis under Diagnostic Code 5260 for limitation of flexion and 5261 for limitation of extension. 38 C.F.R. § 4.7. In making this determination, the Board has considered the competent and credible medical and lay evidence of record. The probative lay and medical evidence of record does not establish limitation of flexion to 30 degrees and limitation of extension to 15 degrees, even when considering functional loss. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.

The Veteran was afforded a VA examination in May 2010. The examiner found the Veteran to have no limitation of extension of the right knee and flexion to 120 degrees. There was objective evidence of painful motion, but the Veteran was able to perform repetitive-use testing without additional limitations. For the left knee, the examiner found the Veteran to have no limitation of extension and flexion to 135 degrees. In the left knee there was also objective evidence of painful motion, but the Veteran was able to perform repetitive-use testing without additional limitations. The examiner noted that the Veteran is unable to walk more than 5-10 minutes, unable to stand more than 20 minutes, and unable to sit more than 30-40 minutes. The examiner also noted that he has difficulty climbing stairs. 

The Veteran was afforded a VA examination in December 2011. The examiner found the Veteran to have no limitation of extension and flexion to 120 degrees in both the right and left knee. There was objective evidence of painful motion in both knees, but the Veteran was able to perform repetitive-use testing without additional limitations. The December 2011 examiner noted the Veteran had functional loss and/or functional impairment of both knees due to weakened movement, less movement than normal, swelling, and pain on movement. The Veteran also had tenderness and pain to palpation. His strength was a full 5/5 in the lower extremities. The examiner found that the functional impact of the knees was that the Veteran could not stand for prolonged periods, walk long distances, or run.

The Veteran also underwent a VA examination in July 2016. The examiner found the Veteran to have no limitation of extension and flexion to 130 degrees in both the right and left knee. There was objective evidence of painful motion in both knees and repetitive use resulted in additional loss of function or range of motion of 10 degrees in each knee. The July 2016 examiner noted the Veteran had functional loss and/or functional impairment of both knees and lower legs due to pain, fatigue, less movement than normal, and lack of endurance. His strength was a full 5/5 in the lower extremities. The functional impact of the knees was that the Veteran could not stand for prolonged periods, walk long distances, or climb stairs.

Most recently, the Veteran was afforded a VA examination in May 2017 and a subsequent addendum opinion in August 2017. The examiner found the Veteran to have no limitation of extension and flexion to 60 degrees in both the right and left knee. There was objective evidence of painful motion in both knees, but the Veteran was able to perform repetitive-use testing without additional limitations. The July 2016 examiner noted that the Veteran has functional loss and/or functional impairment of both knees and lower legs due to pain, fatigue, less movement than normal, and lack of endurance. His strength is a full 5/5 in the lower extremities. The functional impact of the knees is that the Veteran cannot stand for prolonged periods, walk long distances, cannot lift heavy things, climb stairs, and has limited exercise capabilities. The August 2017 addendum opinion indicated that pain was also noted while performing passive and weight-bearing range of motion, while no pain was noted while performing non-weight bearing range of motion.

With respect to granting an increased rating under Diagnostic Code 5260, there is no evidence of record reflecting that the Veteran's left or right knee has a limitation of flexion to 30 degrees, as needed for an increased evaluation under this diagnostic code. As such, an increased rating cannot be assigned for the left or right knee under Diagnostic Code 5260.

With respect to granting a rating under Diagnostic Code 5261, there is no evidence of record reflecting that the Veteran's left or right knee has a limitation of extension to 15 degrees, as needed for an increased evaluation under this diagnostic code. As such, an increased rating cannot be assigned for the left or right knee under Diagnostic Code 5261.

In finding that a higher evaluation is not warranted, the Board has considered the Veteran's subjective complaints, as well as whether there is additional functional loss due to flare-ups, fatigability, incoordination, and pain on movement per 38 C.F.R. §§ 4.40 and 4.45. DeLuca, 8 Vet. App. at 206-07. These factors have been taken into consideration in awarding the 10 percent disability evaluations pursuant to Diagnostic Codes 5003, 5260 and 5261. While the Board acknowledges that the Veteran experiences pain, fatigue, weakness, lack of endurance, and less movement than normal, the July 2016 VA examiner was able to find an additional 10 degrees of decreased range of motion, but such finding would still not warrant a 20 percent rating. Otherwise, on range of motion testing there was no change on repetitive testing due to painful motion or weakness. The Veteran's flexion is not limited to 30 degrees or more in either knee, even taking into account pain on motion and/or the criteria outlined in DeLuca. See Diagnostic Code 5260; DeLuca, 8 Vet. App. at 206-7. Likewise, the Veteran's extension is not limited to 15 degrees in either knee, taking into account pain on motion and/or the criteria outlined in DeLuca. Accordingly, under this theory of entitlement, the Veteran is not entitled to disability ratings in excess of 10 percent under Diagnostic Codes 5260 and 5261.

Instability?  Other rating criteria?
The Board also considered whether an increased evaluation is warranted under other relevant governing codes, such as those codes governing ankylosis, recurrent subluxation, instability, the removal of semilunar cartilage, and impairment of the tibia and fibula. However, the criteria for separate or higher ratings are not met. See 38 C.F.R. § 4.71a , Diagnostic Codes 5256, 5257, 5259, 5262 (2017).  In this regard, the aforementioned range of motion findings clearly demonstrate that the Veteran's knees are not fixated or immobile. There is also no evidence that he has had surgery to remove any cartilage or has any impairment of the tibia and fibula. The evidence shows that neither recurrent subluxation nor instability of has been demonstrated.  

In summary, the Board finds that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for the left and right knee disabilities. 



ORDER

Entitlement to an evaluation in excess of 10 percent for a left knee disability is denied.

Entitlement to an evaluation in excess of 10 percent for a right knee disability is denied.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs