Citation Nr: 20039909 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 11-18 641 DATE: June 11, 2020 ORDER A rating in excess of 20 percent for right knee patellofemoral pain syndrome (PFS) prior to July 22, 2015, is denied. A rating in excess of 10 percent for right knee PFS since July 22, 2015, is denied. A rating in excess of 20 percent for left knee PFS prior to November 1, 2016, is denied. A rating in excess of 10 percent for left knee PFS since November 1, 2016, is denied. FINDINGS OF FACT 1. The Veteran had active service from May 1983 to May 1987 and from November 1987 to November 2007. 2. Prior to July 22, 2015, a right knee disability was manifested by subjective complaints of pain; objective findings include flexion to 135 degrees, extension to 15 degrees, and no evidence of recurrent patellar subluxation, lateral instability, symptomatic removal of semilunar cartilage, or malunion of the tibia or fibula. 3. Since July 22, 2015, a right knee disability has been manifested by subjective complaints of pain, knees locking up, popping, and cracking; objective findings include flexion to 140 degrees, extension to 0 degrees, and no evidence of recurrent patellar subluxation, lateral instability, a semilunar cartilage condition, or malunion of the tibia or fibula. 4. Prior to November 1, 2016, a left knee disability was manifested by subjective complaints of pain; objective findings include flexion of to 135 degrees, extension to 15 degrees, and no evidence of recurrent patellar subluxation, lateral instability, symptomatic removal of semilunar cartilage, or malunion of the tibia or fibula. 5. Since November 1, 2016, a left knee disability has been manifested by subjective complaints of pain, knees locking up, popping, and cracking; objective findings include flexion to 140 degrees, extension to 0 degrees, and no evidence of recurrent patellar subluxation, lateral instability, a semilunar cartilage condition, or malunion of the tibia or fibula. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for right knee PFS were not met prior July 22, 2015. 38 U.S.C. §§ 1110, 1113, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 5260 (2019). 2. The criteria for a rating in excess of 10 percent for right knee PFS have not been met since July 22, 2015. 38 U.S.C. §§ 1110, 1113, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 5260 (2019). 3. The criteria for a rating in excess of 20 percent for left knee PFS were not met prior to November 1, 2016. 38 U.S.C. §§ 1110, 1113, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 5260 (2019). 4. The criteria for a rating in excess of 10 percent for left knee PFS have not been met since November 1, 2016. 38 U.S.C. §§ 1110, 1113, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 5260 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a procedural matter, in July 2014, the Board remanded the case for further development claim. In February 2017, the Board denied higher ratings. The Veteran appealed to the Veterans Claims Court. In October 2017, the Court Clerk granted a Joint Motion for Remand (JMR), vacating the Board’s decision and remand the case for readjudication in accordance with the JMR. In June 2018, the Board remanded the case for further development. An April 2020 rating decision increased the rating for the right knee to 10 percent, effective July 22, 2015. As the April 2020 decision did not represent a total grant of benefits sought on appeal since July 22, 2015, the claim for increase since July 22, 2015, remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Turning to the evidence, the Veteran’s right and left knee disabilities were previously rated at 20 percent under DC 5003-5261. In August 2016, the diagnostic codes were changes to reflect limitation of flexion under DC 5260. The Veteran is now rated under DC 5260 for limitation of flexion of the left and right leg and 38 C.F.R. § 4.59 regarding painful motion. The Board will also consider all potentially relevant diagnostic codes. In order to warrant a higher rating, the evidence must show: • ankylosis of the knee with a favorable angle in full extension or in slight flexion between 0 and 10 degrees (30% under DC 5256); • moderate recurrent subluxation or lateral instability (20% under DC 5257); • dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint (20% under DC 5258); • flexion of the knee limited to 30 degrees (20% under DC 5260); • extension of the knee limited to 15 degrees (20% under DC 5261); or • impairment of the tibia or fibula with a moderate knee disability (20% under DC 5262). In December 2007 when the Veteran sought treatment for bilateral knee pain after exercise. The examination indicated that a pop was heard with full extension of the right knee and there was tenderness with palpation noted. This examination noted normal range of motion (ROM) from 0 to 140 degrees. In November 2010, the Veteran sought treatment for right knee pain which lasted for several months. Pain was rated at a 3/10. ROM was found to be within normal limits; however, the examiner endorsed knee “ROM 15/0/135.” The diagnosis was patellar tendinopathy. In December 2010 follow-up appointment, the Veteran complained of knee pain lasting six weeks. Medical history noted a right knee dislocation “many years ago” (service treatment records note that the dislocation incident in 1983, which occurred during swimming). Examination results showed pain in the anterior portion of the right patella without quadricep shutdown. X-rays were taken and showed no fractures or dislocations with minimal degenerative changes. At a July 2015 VA examination, the Veteran reported that he “wakes up with stiffness which requires an hour of stretching and extra care about once a week.” The examiner endorsed “yes” under flare-ups of the knee based on the Veteran’s statements. The examination was conducted during a time when the Veteran was not experiencing a flare-up. On examination, the bilateral knees had extension to 0 degrees, and flexion to 140 degrees. There was no evidence of pain with weight bearing and no localized pain on palpation of the joint or associated soft tissue. Crepitus was positively endorsed. The examination also revealed that the Veteran was unable to perform repetitive use testing with at least three repetitions. Additional testing showed the absence of ankylosis, normal muscle strength, and normal knee stability. Diagnostic imaging ruled-out the presence of arthritis. The July 2015 VA examination noted that the Veteran experienced flare-ups; however, the examiner did not approximate the additional functional loss during flare-ups. Therefore, the July 2015 examination was found to be inadequate by the Veterans Claims Court and a retrospective opinion about the severity, frequency and duration of any flare-ups and the degree of functional loss during flare-ups at the time of the July 2015 VA examination. In an August 2015 VA medical opinion, the examiner reviewed conflicting medical evidence and provided a clarifying opinion. The examiner noted that the July 2015 VA examination of the Veteran’s knees was essentially normal. Specifically, the clinician noted that item 3b ([i]s the Veteran able to perform repetitive use testing with at least three repetitions) was endorsed as “no” for the right knee even though normal ROM was indicated based on the performed tests. The clinician related that the November 2010 examination likely indicated a limitation in extension in error. He noted that because it was reported that repetitive use over time did not significantly limit functional ability, repetitive use testing would most likely not have resulted in additional limitation in ROM. The clinician concluded that these findings indicated that the Veteran’s diagnosis of bilateral patellofemoral syndrome with normal ROM in July 2015 was actually consistent with the findings from the examination dated November 2010. In the November 2010 examination, the Veteran exhibited flexion in his left knee from 0 degrees to 135 degrees and extension from 15 degrees to 0 degrees. Additionally, the examiner noted that extension limited to 15 degrees was clear and unmistakable error as a limitation to that severity would make it almost physically impossible to walk. Based on the results of the examination, while noting the recording error, he concluded that there was no limitation in ROM. The clinician also noted that the July 2015 examination comments would only be appropriate if repetitive ROM tests were performed and suggested that the boxes for observed repetitive ROM tests were likely endorsed in error. The examiner concluded that based on a relatively normal examination, clear and unmistakable error resulted in the Veteran being assigned a higher rating than was warranted. As a result, the RO reduced the Veteran’s right knee rating to 0 percent. In May 2016, the Veteran stated that the ROM in his knees changes daily. Specifically, he contended that he had good days and bad days where sometimes he had the ability, after taking medication, to move his knees beyond his pain thresholds; however, he acknowledged that on most days, his ROM was so slight that he could barely walk. A VA knee and lower leg disability benefits questionnaire (DBQ), dated in October 2017, showed that the Veteran complained of pain on the inner side of both knees, most of the time. He noted knee locking, popping and cracking in the morning. He denied experiencing any flare-ups. On examination, the bilateral knees had extension to 0 degrees, and flexion to 140 degrees. There was no evidence of pain on weight bearing, and nonweight bearing. There was no additional functional loss or loss in the ROM after three repetitions. For both knees, the examiner stated that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time with regards to pain, weakness, fatigability, and incoordination significantly limited functional ability with repeated use over time. Strength on flexion and extension was 5/5, bilaterally. There was no muscle atrophy. There was no ankylosis. There is no history of recurrent subluxation, or lateral instability, bilaterally. There is no joint instability, bilaterally. The Veteran occasionally used a brace for both knees. In a March 2019 retrospective opinion, the examiner indicated that the Veteran experienced flare-ups described as waking up with stiffness which required an hour of stretching and extra care about once a week. The examiner reported that the flares occurred weekly upon arising in the morning and were resolved by stretching. Each such episode lasted an hour. The examiner indicated that the Veteran did not experience any functional loss or functional impairment of the joint or extremity. Furthermore, he noted that the severity of the Veteran’s flare-ups was mild. Right Knee Prior to July 22, 2015, the Veteran’s right knee disability was rated as 20 percent for limitation of flexion. Effective November 1, 2016, a reduced rating of 0 percent for limitation of flexion was assigned. An April 2020 rating decision increased the rating for the right knee to 10 percent, effective July 22, 2015. Based on the above, the Veteran has not been diagnosed with ankylosis (DC 5256) or impairment of the tibia and fibula (DC 5262). Therefore, these diagnostic codes are not for application. Based on his account that his knee has frequent episodes of locking, popping and cracking, the Board has considered whether a higher rating is warranted under DC 5258; however, records do not indicate that there is dislocated semilunar cartilage; which is required for a rating under DC 5258. Therefore, a higher rating under DC 5258 is not warranted. Next, a rating in excess of 20 percent for right knee PFS was not warranted prior to July 22, 2015, under DC 5260 or DC 5261. Specifically, in December 2007, flexion was 0-140 degrees. In November 2010, ROM testing was flexion 0-135 and extension was to 15 degrees. In a July 2015 examination, ROM was flexion 0-140 and extension 140-0. There was no joint instability. There is no evidence to show that the Veteran’s right knee flexion was limited to 15 degrees, or that his right knee extension was limited to 20 degrees. For the period since July 22, 2015, a rating in excess of 10 percent for right knee PFS is not supported by the evidence. The 10 percent rating was assigned for painful motion. There is no evidence to show that the right knee flexion is limited to 30 degrees or that the right knee extension is limited to 20 degrees. Therefore, the medical evidence does not support a rating in excess of 10 percent since July 22, 2015. Left Knee Prior to November 1, 2016, the Veteran’s left knee disability was rated as 20 percent for limitation of flexion. Effective November 1, 2016, a reduced rating of 10 percent for limitation of flexion was assigned. Based on the above, the Veteran has not been diagnosed with ankylosis (DC 5256) or impairment of the tibia and fibula (DC 5262). Therefore, these diagnostic codes are not for application. Based on his account that his knee has frequent episodes of locking, popping and cracking, the Board has considered whether a higher rating is warranted under DC 5258; however, records do not indicate that there is dislocated semilunar cartilage; which is required for a rating under DC 5258. Therefore, a higher rating under DC 5258 is not warranted. Considering the above, a rating in excess of 20 percent for left knee PFS was not warranted prior to July 22, 2015, under DC 5260 or DC 5261. Specifically, in December 2007, flexion was 0-140 degrees. In November 2010, ROM testing was flexion 0-135 and extension was to 15 degrees. In a July 2015 examination, ROM was flexion 0-140 and extension 140- 0. As above, there was no joint instability. There is no evidence to show that the Veteran’s left knee flexion is limited to 15 degrees, or that his left knee extension is limited to 20 degrees. For the period since July 22, 2015, a rating in excess of 10 percent for left knee PFS is not supported by the evidence. The 10 percent rating is assigned for painful motion. There is no evidence to show that the Veteran’s left knee flexion is limited to 30 degrees, or that his left knee extension is limited to 20 degrees. Therefore, the medical evidence does not support a rating in excess of 10 percent since July 22, 2015. The Board has also considered whether a higher rating is warranted based on additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. at 204-207 (1995). Here, the Veteran complained of pain on the inner side of both knees, knee locking, popping and cracking and waking up with stiffness which requires an hour of stretching and extra care about once a week. The findings tend to show that he has 5/5 strength, with no findings of such symptoms as atrophy or incoordination. Gait has primarily been shown to be normal, or symmetrical. The VA examination reports contain multiple findings that there was no additional functional loss, or loss in the ROM, after three repetitions. The March 2019 retrospective opinion noted that the Veteran experienced flare-ups described as waking up with stiffness which requires an hour of stretching and extra care about once a week. The examiner reported that the flare-ups occurred weekly and each such episode lasted an hour. The examiner indicated that the Veteran did not experience any functional loss or functional impairment of the joint or extremity. Furthermore, he noted that the severity of the Veteran’s flare-ups was mild. Given the foregoing, even taking into account the complaints of pain, the medical evidence does not show symptoms as atrophy, loss of strength, or neurological impairment or incoordination, such that when the ranges of motion in the right knee or the left knee are considered that higher ratings are warranted. The Board has also considered the Veteran’s lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s knee disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Grzeczkowicz 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.