Citation Nr: 20003889 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 18-34 291 DATE: January 16, 2020 ORDER Entitlement to an initial 10 percent disability rating for patellofemoral syndrome of the left knee, from December 14, 2008, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial 10 percent disability rating for patellofemoral syndrome of the right knee, from December 14, 2008, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial disability rating higher than 10 percent for patellofemoral syndrome of the left knee is denied. Entitlement to an initial disability rating higher than 10 percent for patellofemoral syndrome of the right knee is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Since the December 14, 2008 effective date of service connection, the Veteran’s patellofemoral syndrome of the left knee has been manifested by knee pain and functional impairment; knee flexion has been limited to at most 130 degrees and there has been no limitation of extension; there is competent and credible evidence of left knee pain and flare ups, but there is no significant or sustained additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, incoordination, or flare ups; there is no knee ankylosis, subluxation, lateral instability, semilunar cartilage dislocation or removal, symptomatic tibia or fibula impairment, or genu recurvatum. 2. Since the December 14, 2008 effective date of service connection, the Veteran’s patellofemoral syndrome of the right knee has been manifested by knee pain and functional impairment; knee flexion has been limited to at most 130 degrees and there has been no limitation of extension; there is competent and credible evidence of right knee pain and flare ups, but there is no significant or sustained additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, incoordination, or flare ups; there is no knee ankylosis, subluxation, lateral instability, semilunar cartilage dislocation or removal, symptomatic tibia or fibula impairment, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent disability rating from December 14, 2008, for patellofemoral syndrome of the left knee, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5256-5263. 2. The criteria for an initial disability rating in excess of 10 percent from December 14, 2008, for patellofemoral syndrome of the left knee, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5256-5263. 3. The criteria for an initial 10 disability percent rating from December 14, 2008, for patellofemoral syndrome of the right knee, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5256-5263. 4. The criteria for an initial disability rating in excess of 10 percent from December 14, 2008, for patellofemoral syndrome of the right knee, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2004 to December 2008. These matters come before the Board of Veterans’ Appeals (Board) from a June 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. As for characterization of the issues on appeal, the evidence reflects that the Veteran has been unemployed during portions of the claim period and he submitted a formal claim for a TDIU (VA Form 21-8940) in June 2018. Entitlement to a TDIU may be an element of an appeal for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Given the evidence of current disabilities, the Veteran’s claim for the highest ratings possible for his service-connected knee disabilities, and the evidence of unemployability, the issue of entitlement to a TDIU is properly before the Board and the Board has expanded the appeal to include this issue. Higher Initial Ratings Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. § Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be “staged.” Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where there is a question as to which of two 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. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Disabilities evaluated on the basis of limitation of motion require VA 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 determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These 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. The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Further, in claims for higher ratings for musculoskeletal disabilities, where a veteran has a noncompensable rating and complains of pain on motion, the veteran may be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court held that under 38 C.F.R. § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint,” and it explained that 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that 38 C.F.R. § 4.59 does not require “objective” evidence, but can be satisfied with lay and other non medical evidence. Id. at 429. The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton, supra; Id. Moreover, the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Entitlement to higher initial ratings for patellofemoral syndrome of the left and right knee, both rated noncompensable prior to April 20, 2015, and 10 percent disabling since that date The Veteran’s patellofemoral syndrome of the left and right knee are both rated under 38 C.F.R. § 4.71a, DC 5260 as limitation of knee flexion. Under DC 5260, limitation of knee flexion is rated as follows: a 10 percent rating is warranted when it is limited to 45 degrees; a 20 percent rating is warranted when it is limited to 30 degrees; and a 30 percent rating is warranted when it is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. VA’s General Counsel has held that separate ratings can be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Limitation of knee extension is rated as follows: a noncompensable rating is warranted when it is limited to 5 degrees; a 10 percent rating is warranted when it is limited to 10 degrees; a 20 percent rating is warranted when it is limited to 15 degrees; a 30 percent rating is warranted when it is limited to 20 degrees; a 40 percent rating is warranted when it is limited to 30 degrees; and a 50 percent rating is warranted when it is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds that, for the following reasons, the symptoms of the Veteran’s patellofemoral syndrome of the left and right knee have most closely approximated the criteria for 10 percent ratings, but no higher, during the entire period since the December 14, 2008 effective date of service connection. The Veteran reported on his February 2009 “Veteran’s Application for Compensation and/or Pension” form (VA Form 21-526), during a February 2009 VA case management evaluation, during a March 2009 VA examination, and in an April 2010 statement (VA Form 21-4138), that he experienced occasional bilateral knee pain, especially in the morning and during periods of cold weather. There was no weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, or dislocation. The Veteran was not receiving any treatment for his knee disabilities and had never been hospitalized or undergone any surgery for his disabilities. Overall, he did not experience any functional impairment due to his knee disabilities and he did not use any assistive devices for ambulation. Examination of the knees revealed that there was no edema, effusion, weakness, tenderness, redness, heat, subluxation, guarding of movement, locking pain, genu recurvatum, or crepitus. The ranges of knee motion were recorded as being flexion to 140 degrees and extension to 0 degrees bilaterally. Knee function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Anterior and posterior cruciate ligament stability testing, medial and lateral collateral ligament stability testing, and medial and lateral meniscus testing were all normal bilaterally. The Veteran’s disability had mild effects on his occupation and daily activities. An April 2015 VA knee examination report indicates that the Veteran had been experiencing worsening bilateral knee pain for approximately the previous 2 years. He also experienced flare ups of knee stiffness which resulted in decreased mobility, but he did not report any other functional loss/impairment of the knees. Examination revealed that the ranges of knee motion were flexion to 135 degrees and extension to 0 degrees bilaterally. The ranges of motion themselves did not cause functional loss, there was no pain noted on examination, and there was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissues. There was objective evidence of crepitus bilaterally. The Veteran was able to perform repetitive-use testing with at least 3 repetitions and there was no additional loss of function or range of motion after 3 repetitions. He was not being examined immediately after repetitive use over time, the examination supported his statements describing functional loss with repetitive use over time, and pain, weakness, fatigability, or incoordination did not significantly limit functional ability of either knee with repeated use over a period of time. The Veteran reported that he experienced mild flare ups of bilateral knee symptoms during the winter which lasted 1 to 2 hours at a time. The examination was not being conducted during a flare up, but the examination supported his statements describing functional loss during flare ups. Pain significantly limited functional ability of both knees during flare ups, but the examiner was unable to describe the additional decreased ranges of knee motion during flare ups in terms of specific ranges of motion. There was less movement than normal associated with both knees, but no other additional factors contributing to disability. Moreover, muscle strength associated with knee flexion and extension was normal (5/5) bilaterally, there was no muscle atrophy, and there was no knee ankylosis. There was no history of any recurrent subluxation, lateral instability, or recurrent effusion associated with either knee and joint stability testing was normal bilaterally. The Veteran did not have any recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, any other tibial/fibular impairment, or a meniscus condition. There were no scars associated with the Veteran’s knee disabilities and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. He did not use any assistive devices and there was no functional impairment of any extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. X-rays did not reveal any degenerative/traumatic arthritis or any other significant findings. The Veteran was diagnosed as having bilateral patellofemoral pain syndrome. This disability did not impact his ability to perform any occupational tasks. The Veteran reported during an April 2018 VA knee examination that he was experiencing an increase in the severity and frequency of his bilateral knee symptoms, but that he did not experience any recent injury or intervention. His symptoms included bilateral knee aching, tightness, and stiffness. These symptoms were worse upon awakening in the morning, during cold weather, and with overuse, and they were treated with medications as needed. He did not report any flare ups of knee symptoms, but there was functional loss/impairment in that his knees started to bother him after standing more than 30 minutes, squatting, or running. Examination revealed that the ranges of knee motion were flexion to 130 degrees and extension to 0 degrees bilaterally. The ranges of motion themselves did not contribute to functional loss. There was pain associated with flexion of both knees and evidence of pain with weight-bearing, but the pain did not result in/cause functional loss, there was no objective evidence of localized tenderness or pain on palpation of the joints or soft tissues, and there was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing of both knees with at least 3 repetitions and there was no additional loss of function or range of motion after 3 repetitions. He was not being examined immediately after repetitive use over time or during a flare up and the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time and during flare ups. The examiner was unable to determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability of either knee with repeated use over a period of time or during flare ups without resort to mere speculation and was unable to describe any additional functional loss in terms of range of motion loss. The examiner explained that there was no conceptual or empirical basis for making such a determination without directly observing function under such conditions. There were no additional factors contributing to the Veteran’s disability. Moreover, muscle strength associated with knee flexion and extension was normal (5/5) bilaterally, there was no muscle atrophy, and there was no knee ankylosis. There was no history of any recurrent subluxation, lateral instability, or recurrent effusion associated with either knee and joint stability testing was normal bilaterally. The Veteran did not have any recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, any other tibial/fibular impairment, or a meniscus condition. There were no scars associated with the Veteran’s knee disabilities and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. He did not use any assistive devices and there was no functional impairment of any extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. X-rays did not reveal any degenerative/traumatic arthritis or any other significant findings. A diagnosis of bilateral patellofemoral pain syndrome was provided. This disability impacted the Veteran’s ability to perform occupational tasks in that he experienced difficulty with running, prolonged standing, and squatting, and he lost 0-1 week of work during the previous 12 months. The examiner also noted that there was no objective evidence of pain on passive range of motion testing or when the knees were used in non weight-bearing. An April 2019 VA knee examination report reflects that the Veteran experienced bilateral knee pain when ascending and descending stairs. He did not report any flare ups of knee symptoms or any functional loss/impairment of the joints. The ranges of knee motion were recorded as being flexion to 140 degrees and extension to 0 degrees bilaterally. There was pain associated with flexion of both knees and evidence of pain with weight-bearing, but the pain did not result in/cause functional loss, there was no objective evidence of localized tenderness or pain on palpation of the joints or soft tissues, and there was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing of both knees with at least 3 repetitions and there was no additional loss of function or range of motion after 3 repetitions. He was not being examined immediately after repetitive use over time and the examination was medically consistent with his statements describing functional loss with repetitive use over time. Pain significantly limited functional ability of both knees with repeated use over a period of time and the examiner specified that the ranges of knee motion with repeated use over time would be flexion to 135 degrees and extension to 0 degrees bilaterally. There were no additional factors contributing to the Veteran’s disability. Additionally, muscle strength associated with knee flexion and extension was normal (5/5) bilaterally, there was no muscle atrophy, and there was no knee ankylosis. There was no history of any recurrent subluxation, lateral instability, or recurrent effusion associated with either knee and joint stability testing was normal bilaterally. The Veteran did not have any recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, any other tibial/fibular impairment, or a meniscus condition. There were no scars associated with the Veteran’s knee disabilities and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. He did not use any assistive devices and there was no functional impairment of any extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. The Veteran was diagnosed as having bilateral patellofemoral pain syndrome. This disability did not impact his ability to perform occupational tasks. Moreover, the examiner noted that there was no objective evidence of pain on passive range of motion testing or when the knees were used in non weight-bearing. The above evidence indicates that the Veteran has experienced occasional bilateral knee pain throughout the entire claim period. For instance, he reported bilateral knee pain as early as February 2009 on the February 2009 VA Form 21-526 and during the February 2009 VA case manager evaluation. In light of the evidence of actual bilateral knee pain and functional impairment, and the Court’s holding in Petitti, and with resolution of all reasonable doubt in the Veteran’s favor, the Board finds that minimum, compensable ratings under DC 5260 (i.e.,10 percent) are warranted for patellofemoral syndrome of the left and right knee since the December 14, 2008 effective date of service connection. This contemplates limitation of knee flexion to 45 degrees. See Petitti, 27 Vet. App. at 424-30; Burton, 25 Vet. App. at 3-5; 38 C.F.R. § 4.71a, DC 5260. The Board also finds, however, that ratings higher than 10 percent under DC 5260, and/or compensable ratings under DC 5261 for limitation of knee extension, are not warranted for patellofemoral syndrome of the left or right knee at any time since the effective date of service connection. The reports of the March 2009, April 2015, April 2018, and April 2019 VA examinations reflect that knee flexion was limited to at most 130 degrees bilaterally. There has been no limitation of knee extension and no additional loss of function or range of motion after repetitive-use testing. The Veteran reported during the April 2015 examination that flare ups of knee stiffness occurred during winter weather, lasted for 1 to 2 hours at a time, and resulted in decreased mobility. The April 2015 examiner specified that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time. Pain did significantly limit functional ability of the knees during flare ups, but the examiner was unable to describe the additional functional loss in terms of knee range of motion. The Veteran did not subsequently report any flare ups during the April 2018 and April 2019 examinations, but the April 2019 examiner specified that knee flexion would be limited to 135 degrees bilaterally due to pain after repeated use over time. There would be no additional limitation of knee extension after repeated use over time. The Veteran is competent to report the symptoms associated with his service connected knee disabilities and the extent of his impairment during flare ups of symptoms and following repetitive use, and the Board has no reason to challenge the credibility of his contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Regardless of the competent and credible reports of flare ups, pain, and other functional impairments, and despite the fact that painful motion has been documented, the preponderance of the evidence nonetheless supports the conclusion that the Veteran’s knee symptoms have most closely approximated the criteria for a 10 percent rating under DC 5260 since the effective date of service connection. Specifically, the above evidence reflects that the flare ups and other functional impairments have not been so severe, frequent and/or prolonged to warrant the next higher percent ratings. A preponderance of the evidence shows that even considering pain, flare ups, and other functional factors, the Veteran’s knee symptoms have not been shown to have been so disabling to actually or effectively result in limitation of knee flexion more nearly approximating 30 degrees or limitation of knee extension more nearly approximating 10 degrees, which are the requirements for a 20 percent rating for limitation of knee flexion under DC 5260 and a compensable (10 percent) rating for limitation of knee extension under DC 5261, respectively. Moreover, there has been no evidence of any knee ankylosis, recurrent subluxation or lateral instability, cartilage dislocation or removal, impairment of the tibia or fibula, or genu recurvatum at any time during the claim period. Therefore, separate/higher ratings are not warranted under DCs 5256, 5257, 5258, 5259, 5262, or 5263 at any time during the claim period. Overall, the Veteran’s patellofemoral syndrome of the left and right knee have resulted in impairments that are no more than 10 percent disabling under DC 5260 during the entire claim period. Therefore, initial 10 percent ratings, but no higher, for these disabilities are warranted since the December 14, 2008 effective date of service connection. As a final point, the Board notes that in conjunction with the higher initial rating matters decided herein, other than the issue of entitlement to a TDIU which is addressed below, neither the Veteran nor his representative have raised any other related issues, nor have any other such issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to a TDIU due to service-connected disabilities is remanded. The Board finds that clarification as to the Veteran’s employment history during the claim period would assist in its adjudication of his TDIU claim. In particular, he reported on a June 2018 “Veteran’s Application for Increased Compensation Based on Unemployability” form (VA Form 21-8940) that he stopped working in February 2018. However, VA treatment records dated in 2019 indicate that he was employed on a full time basis as recently as September 2019 (see a September 2019 VA mental health consultation note). Although it appears that he subsequently lost his job in October 2019, he was actively seeking employment at that time (see an October 2019 VA mental health telephone encounter note). Therefore, clarification as to the Veteran’s employment history during the claim period should be sought upon remand. Further, the Board notes that issues concerning the ratings assigned for the service connected mental health and skin disorders are currently being developed at the agency of original jurisdiction (AOJ). As development of these issues could impact the Board’s consideration of the TDIU issue, the Board notes that it would be premature for to decide the question of entitlement to a TDIU at this time. The TDIU issue is REMANDED for the following action: 1. Ask the Veteran to report his full employment history and earnings during the period since December 2008, to include the starting and ending dates of any employment during that period. Once such information is received, the AOJ should perform any additional development deemed necessary. 2. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the Veteran’s service connected disabilities. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 3. Obtain the Veteran’s outstanding VA treatment records from the Hampton Vista electronic records system for the period since October 2019; and all such relevant records from any other sufficiently identified VA facility. 4. Then, readjudicate the issue of entitlement to a TDIU. If the benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. E. Blowers Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.