Citation Nr: 20040751 Decision Date: 06/16/20 Archive Date: 06/16/20 DOCKET NO. 18-23 095A DATE: June 16, 2020 ORDER Entitlement to an increased rating in excess of 20 percent for right knee instability is denied. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral pain syndrome and anterior cruciate ligament strain is denied. FINDINGS OF FACT 1. The Veteran’s service-connected right knee instability is not shown to be manifested by more than moderate in degree. 2. The Veteran’s right knee patellofemoral syndrome has been manifested with flexion limited to 110 degrees with pain. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 20 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5257. 2. The criteria for an initial rating in excess of 10 percent for right knee patellofemoral syndrome and anterior cruciate ligament strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 2005 to December 2012. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). During the course of the appeal, a January 2018 Decision Review Officer (DRO) Decision increased the Veteran’s disability rating for right knee instability to 20 percent, effective December 12, 2016. As the RO did not assign the maximum disability rating possible, and the Veteran has not withdrawn his appeal for a higher rating, the appeal for higher disability evaluations remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that the Veteran was previously represented by a private attorney. In February 2020, prior to the May 2020 certification of the appeal to the Board, that attorney notified VA that he was withdrawing from the case. Under 38 C.F.R.§ 14.631(c), the Veteran’s attorney may withdraw representation before an agency of original jurisdiction if such withdrawal would not adversely impact the Veteran’s interests. Such a withdrawal requires notification in writing to the Veteran, the agency of original jurisdiction, and the VA organization in possession of the Veteran’s claims file. In this case, the February 2020 correspondence was sent to the RO, who was both the agency of original jurisdiction and the VA organization in possession of the Veteran’s claims folder. The letter indicates that it was also sent to the Veteran. In addition, there is no indication, and the Veteran has not asserted that the withdrawal would adversely affect his interests. Thus, the Board finds the requirements of 38 C.F.R. § 14.631(c) were satisfied. This case raises no further issues, other than those adjudicated below. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Increased Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate DCs identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. 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 required for that rating. Otherwise, the lower rating will be assigned. 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). 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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Knee disabilities may be rated under 38 C.F.R. § 4.71a, DC 5256 (for ankylosis), DC 5257 (for other impairment, including recurrent subluxation or lateral instability), DC 5258 (or dislocated semilunar cartilage), DC 5259 (for symptomatic removal of semilunar cartilage), DC 5260 (for limitation of flexion), DC 5261 (for limitation of extension), DC 5262 (for impairment of the tibia and fibula), and DC 5263 (for genu recurvatum). 38 C.F.R. § 4.71a. The Board finds that DCs 5256, 5258, 5259, 5262, and 5263 are not applicable in this appeal as the medical evidence does not establish that the Veteran experienced these symptoms at any point during the pendency of the appeal. 38 C.F.R. § 4.71a, DCs 5256, 5258, 5259, 5262, and 5263. The Board will instead focus on the applicable diagnostic codes. 1. Entitlement to an increased rating in excess of 20 percent for right knee instability. The Veteran’s right knee instability is rated under 38 C.F.R. § 4.71a, DC 5257. He contends that his right knee instability is worse than contemplated by the currently assigned 20 percent disability rating. See May 2018 VA Form 9 Formal Appeal. After a review of the evidence, the Board finds that a rating in excess of the currently assigned 20 percent rating for a right knee instability is not warranted. Under DC 5257, a slight impairment warrants a 10 percent disability rating, a moderate impairment warrants a 20 percent disability rating, and a severe impairment warrants a 30 percent disability rating. The Veteran was afforded a May 2017 VA knee and lower leg conditions examination. The examiner confirmed diagnoses of right knee strain, right knee anterior cruciate ligament tear, and bilateral patellofemoral pain syndrome, all from 2017. The Veteran reported that the condition began after a parachute training job in 2008 and had gotten worse. Flare-ups were reported. Right knee range of motion (ROM) results included flexion from 0 to 110 degrees and extension from 110 to 0 degrees with pain noted for each motion. There was no change noted with repetitive use testing. The report noted that there is objective evidence of moderate tenderness to palpation caused by the Veteran’s knee condition. The report also noted objective evidence of crepitus. The examiner also noted additional factors contributing to the disability including less movement than normal due to ankylosis, adhesions, etc.; swelling; instability of station; disturbance of locomotion; and interference with standing. Muscle strength was rated at 5/5 for both right knee flexion and extension. No ankylosis, recurrent subluxation, or lateral instability was noted. However, the report does indicate that specific joint testing was done and the Veteran anterior instability (Lachman test) was noted as 2+ (5-10 millimeters). All other joint stability tests were normal. The Veteran was reported to occasionally use a brace. The claims file also includes a June 2013 VA knee and lower leg examination. After a thorough review, the Board notes that the examiner diagnosed a small right knee effusion resulting from a parachute jump landing. ROM was normal, and no pain was noted on the examination. Stability testing results were all noted normal. The report noted right knee imaging from August 2012. Given the evidence noted above, the Board finds the 20 percent rating currently assigned to the Veteran’s service-connected right knee instability under DC 5257 to be proper based on the finding of moderate anterior instability. The only possible basis for an increase to a 30 percent disability rating would be a showing of disability more nearly approximating “severe” recurrent subluxation or lateral instability impairment of the knee. The May 2017 VA examination report shows no subluxation, but instead moderate joint instability. The only other VA knee examination in the claims file dated June 2014 shows that knee instability and subluxation were not present. VA treatment records only note right knee pain. The Board notes that the considerations in DeLuca, supra, are not applicable here, as DC 5257 is not predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Thus, the Board finds that a rating in excess of 20 percent for right knee instability is not warranted under DC 5257. The claim is denied. 2. Entitlement to an initial rating in excess of 10 percent for patellofemoral pain syndrome and anterior cruciate ligament strain right knee. The Veteran seeks an initial rating in excess of 10 percent for right knee patellofemoral pain syndrome. The appeal period before the Board begins on September 19, 2016, the date the Veteran filed Notice of Intent to file a claim. For the following reasons, the Board finds that an initial rating in excess of 10 percent based on limitation of flexion is not warranted. In order to maximize the Veteran’s disability rating, the Board has considered the applicability of multiple DCs. DC 5260 provides a 10 percent rating when flexion of the leg limited to 45 degrees, a 20 percent rating when flexion is limited to 30 degrees, and a maximum 30 percent rating when flexion is limited to 45 degrees. DC 5261 provides a 10 percent rating when extension is limited at 10 degrees, a 20 percent rating extension limited at 15 degrees, a 30 percent rating when extension is limited to 20 degrees, a 40 percent rating when extension is limited to 30 degrees, and a maximum 50 percent rating when extension is limited to 45 degrees. Flexion of the knee to 140 degrees is considered full; extension to 0 degrees is considered full. Plate II. 38 C.F.R. § 4.71a. Separate ratings may be assigned where a knee disability includes both compensable limitation of flexion under DC 5260 and compensable limitation of extension under DC 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). As noted above, during the May 2017 VA knee and lower leg conditions examination, the examiner confirmed diagnoses of right knee strain, right knee anterior cruciate ligament tear, and bilateral patellofemoral pain syndrome, all from 2017. The Veteran reported current symptoms of knee pain on both flexion and extension. The report also notes that there was mild to moderate tenderness to the joint capsule. The pain was noted to cause functional loss. The Veteran did not report pain, weakness, fatigability and/or incoordination and additional limitation of functional ability of the right knee during flare-ups or repeated use over time. ROM tests performed during the examination revealed flexion was 110 degrees and extension was to 0 degrees. No evidence of subluxation or ankylosis was noted. The claims file also includes multiple VA treatment records where the Veteran reported right knee pain, including an August 2016 primary care record noting that the Veteran was complaining about right knee pain off and on over the past 2-3 months. The pain level experienced was 4/10, but it had been as high as 8/10. The Veteran reported a “popping” sound in the right knee with certain movements followed by pain and swelling. In a September 2016 treatment record, the VA provider notes that three views of the right knee were obtained. The radiology report noted that bone mineralization appeared normal. No acute osseous abnormality was present. No significant degenerative changes of the right knee were noted. Alignment was maintained. Soft tissues were unremarkable. The impression was of a negative study. In a November 2016 treatment record, knee pain was noted as 3/10, controlled with a knee brace. In a May 2017 physical therapy knee examination, the Veteran reported painful popping and swelling. Based on review of all evidence of record, the Board finds that a rating in excess of 10 percent is not warranted. Objective testing produced right knee flexion no worse than 110 degrees and full extension to 0 degrees. Under either DC 5260 or 5261 this equates to a noncompensable, 0 percent rating. As evaluations under DCs 5260 and 5261 are predicated on range of motion measurements, they do not subsume the functional loss factors discussed in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider whether those factors further limit range of motion beyond the objective test results. Here, the Veteran’s right knee patellofemoral pain syndrome has manifested in constant pain, rated as 3/10 early in the appeal period and described as moderate in the May 2017 VA examination. In more recent VA treatment, the Veteran reported painful popping with knee swelling. The knee pain has been described as chronic in the latest treatment records. There was no indication of a related reduction in range of motion during such times. Given the forgoing, there is not a reasonable basis to find that pain on flares or extended use over time further limit the range of motion beyond objective test results, such that a higher rating would be warranted. See also 38 C.F.R. § 4.59. In reaching the conclusion that a higher rating is not warranted, the Board has considered whether the Veteran’s painful motion contributes to the actual limitation of motion such that an increased rating is warranted. Here, even when considering pain on use experienced by the Veteran, the Board finds that an increased rating for limitation of motion is not warranted. See 38 C.F.R. § 4.40. Rather, the Veteran’s functional impairment is fully contemplated in the assigned 10 percent rating. Accordingly, the claim must be denied. 38 C.F.R. § 4.7. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, Associate 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.