Citation Nr: 20021806 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 15-46 408 DATE: March 27, 2020 ORDER An initial rating in excess of 10 percent for left knee femoropatellar syndrome is denied. An initial rating in excess of 10 percent for right knee femoropatellar syndrome is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s left knee femoropatellar syndrome is manifested by subjective complaints of pain, soreness, swelling, stiffness, aching, and giving way with flexion limited to, at most, 130 degrees and full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, recurrent subluxation or lateral instability, dislocated or removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. 2. For the entire appeal period, the Veteran’s right knee femoropatellar syndrome is manifested by subjective complaints of pain, soreness, swelling, stiffness, aching, and giving way with flexion limited to, at most, 130 degrees and full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, recurrent subluxation or lateral instability, dislocated or removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left knee femoropatellar syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5620. 2. The criteria for an initial rating in excess of 10 percent for right knee femoropatellar syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2006 to January 2013. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in April 2013 by a Department of Veterans Affairs (VA) Regional Office. In August 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In December 2018, the Board remanded the claims of entitlement to higher initial ratings for the Veteran’s back and bilateral knee disabilities and entitlement to service connection for right hand, right ankle, and left ankle disorders for additional development. In a November 2019 rating decision, the Agency of Original Jurisdiction (AOJ) awarded service connection for left ankle strain s/p ORIF of left foot 5th metatarsal. As such is a full grant of the benefit sought on appeal with respect to that issue, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Further, while the AOJ continued the denial of an initial rating in excess of 10 percent for lumbar strain and service connection for right hand and right ankle disorders in a November 2019 supplemental statement of the case, the Veteran opted into the modernized appeals process, known as the Appeals Modernization Act (AMA), and withdrew such issues from the legacy appeals process in January 2020. Consequently, such appeal will be subsequently docketed and adjudicated under the AMA. The AOJ also awarded initial ratings of 10 percent for the Veteran’s service-connected left and right knee disabilities, effective January 18, 2013, the date of service connection. Contrary to the AOJ’s advisement, such higher ratings do not constitute a full grant of the benefit sought on appeal. In this respect, the Veteran’s March 2014 notice of disagreement requested an evaluation of “10 percent or greater” (emphasis added). Therefore, the Board finds that the initial 10 percent ratings assigned do not fully satisfy the Veteran’s appeal in regard to such claims and, therefore, they remain before the Board. The Board also remanded the issues of entitlement to higher initial ratings for left shoulder and cervical spine disabilities for the issuance of a statement of the case. In a December 2019 rating decision awarded a higher rating for the former disability and advised the Veteran that such was a full grant of the benefit sought on appeal. Additionally, the AOJ issued a statement of the case addressing the Veteran’s claim for a higher initial rating for his cervical spine disability in November 2019; however, he did not perfect an appeal. Consequently, such matters are not properly before the Board. 1. Entitlement to an initial rating in excess of 10 percent for left knee femoropatellar syndrome. 2. Entitlement to an initial rating in excess of 10 percent for right knee femoropatellar syndrome. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation 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. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). For the entire appeal period stemming from the January 18, 2013, date of service connection, the Veteran’s left and right knee femoropatellar syndrome have been rated as 10 percent disabling pursuant to Diagnostic Code 5260 based on painful limited motion. 38 C.F.R. § 4.59. In this regard, normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees, and a 30 percent rating may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees, while a 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees, a 50 percent rating may be assigned. VA’s General Counsel has also stated that separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 2004). Upon a review of the evidence, the Board finds that initial ratings in excess of 10 percent for the Veteran’s bilateral knee disabilities are not warranted. In this regard, the evidence does not reflect flexion limited to 60 degrees or extension limited to 5 degrees in either knee so as to warrant even a noncompensable rating under Diagnostic Code 5260 or 5261. Specifically, at the March 2013 VA examination, while the Veteran reported pain, soreness, swelling, and stiffness, he had flexion to 130 degrees and full extension without pain, to include following repetitive use testing. Similarly, in June 2016, while the Veteran reported pain, he denied that his bilateral knee disabilities limited his mobility. Furthermore, he had flexion to 130 degrees and full extension to include following repetitive use testing and repeated use over time. At the September 2019 VA examination, the Veteran reported aching, stiffness, and pain. However, he had normal range of motion with flexion to 140 degrees and extension to zero degrees, to include following repetitive use testing and repeated use over time. The Board has also considered whether additional factors, to include flare-ups, active and passive range of motion, and pain with weight bearing and nonweight bearing, result in further limitation of the range of motion of the Veteran’s bilateral knees. In this respect, although he denied flare-ups in June 2016 and September 2019, he did report experiencing flare-ups in March 2013. Notably, however, the Veteran did not report any increased limitation of motion during a flare-up. Additionally, as noted above, in June 2016, the Veteran also reported that neither knee impaired his mobility. Further, the September 2019 VA examiner considered such factors, to include as noted in the prior March 2013 and June 2016 VA examinations, and found that, while the Veteran’s pain would significantly limit his functional ability with repeated use over time for both knees, he still had flexion to 140 degrees and extension to zero degrees bilaterally even in consideration of such factors. Furthermore, he stated that there was no pain, weakness, fatigability, or incoordination that significantly limited the Veteran’s functional ability during flare-ups of either knee. Moreover, he ultimately concluded that the Veteran had no functional impairment associated with his bilateral knee disabilities. Consequently, the Board finds the evidence does not support higher and/or separate ratings than those currently assigned for the Veteran’s knee disabilities. The Board notes that the Veteran reported that his knees gave way at the August 2016 Board hearing. As such, the Board has considered whether a higher or separate rating is warranted under Diagnostic Code 5257. VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). In this regard, such Diagnostic Code provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. In this regard, the Court has held that Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. English v. Wilkie, 30 Vet. App. 347 (2018). However, in the instant case, the Board finds that, while the Veteran is competent to describe feelings of giving way, he is not competent as a lay person to diagnose lateral instability or subluxation. In this regard, there is no indication that he possesses the requisite knowledge to administer or interpret specialized testing that would reveal instability or subluxation. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Further, the March 2013, June 2016, and September 2019 VA examiners, who are medical professionals that conducted appropriate testing, found that there was no laxity or subluxation in either knee. Consequently, the Board affords greater weight to the VA examiners who found no instability in the left and right knees than the Veteran’s generalized lay statements regarding the presence of such impairment. See, e.g., Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Similarly, as there is no evidence of ankylosis, dislocated or removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for application. In making its determinations in this case, the Board acknowledges the Veteran’s belief that his bilateral knee symptoms are more severe than as reflected by the currently assigned ratings. While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert, 21 Vet. App. 456. Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his reports regarding the severity of such conditions. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected bilateral knee disabilities; however, such disabilities have remained stable throughout the appeal period. Therefore, assigning staged ratings for such disabilities is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claims addressed herein. 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 claimant or reasonably raised by the evidence of record). In sum, the Board finds that initial ratings in excess of 10 percent for the Veteran’s bilateral knee disabilities are not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against his claims. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.