Citation Nr: 20047876 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 14-05 656 DATE: July 16, 2020 ORDER Entitlement to an increased rating for left knee patellofemoral syndrome with anterior cruciate ligament (ACL) sprain on the basis of limitation of motion, currently rated as 10 percent disabling, is denied. Entitlement to a separate increased rating of 10 percent, but no higher, for left knee instability is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Throughout the entire rating period, left knee flexion more nearly approximated 140 degrees; at no time did it more nearly approximate 45 degrees, with consideration of functional loss during flare-ups and repetitive use. 2. Throughout the entire rating period, left knee extension more nearly approximated 0 degrees; at no time did it more nearly approximate 10 degrees, with consideration of functional loss during flare-ups and repetitive use. 3. Throughout the entire rating period, left knee instability more nearly approximate slight instability; at no time did it more nearly approximate moderate instability. CONCLUSIONS OF LAW 1. The criteria for an increased rating for left knee disability with limitation of motion, currently rated as 10 percent disabling, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5260, 5261. 2. The criteria for a separate 10 percent, but no higher, increased rating for left knee disability with instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2000 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that continued a 10 percent rating for patellofemoral syndrome, left knee. In November 2016, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In September 2018, the Board issued a decision dismissing a claim for service connection for bilateral hearing loss and granting service connection for bilateral tinnitus. These issues are no longer on appeal. The Board remanded the increased rating claim for left knee patellofemoral syndrome for additional development. The development has been completed to the extent possible, and this issue returns for appellate review. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The claim was remanded by the Board in September 2018 to satisfy these obligations by obtaining additional medical records, appropriate VA knee examination and medical opinions. In June 2019, the Veteran received a letter requesting that he submit any private medical records he would like considered with his claim. He did not respond. For the reasons indicated in the discussion below, the October 2019 VA knee examination and medical opinions are adequate to decide the claim and reflect substantial compliance with these remand instructions and there has been no contention to the contrary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes the specific legal guidance concerning functional impairment assessments in rating orthopedic disabilities. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran’s reports concern generalized activity limitations due to left knee pain. He does not report specific left knee motion loss from flare-ups and repeated use over time. The demonstrated left knee joint motion at issue is much greater than the contemplated motion loss by the next higher rating criteria. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of 38 C.F.R. § § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). A remand for a retrospective opinion or more information as to knee functional impairment during flare-ups or repeated use over time would not overcome the large gap from the specified motion loss to more nearly approximate higher ratings. Id. Accordingly, the Board finds that the Veteran is not prejudiced by any inadequacy from VA knee examinations in determining functional impairment and any deficiency is harmless error. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). Increased rating claims Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Left knee patellofemoral syndrome with ACL sprain The Veteran is service-connected for left knee patellofemoral syndrome with ACL sprain. It is rated as 10 percent disabling under DC 5260. 38 C.F.R. § 4.71a, DC 5260. The limitation of knee motion DCs are found under DCs 5260 and 5261 for limitation of leg motion. 38 C.F.R. § 4.71a, DCs 5260, 5261. DC 5260, limitation of flexion of a leg, provides a 10 percent rating if flexion is limited to 45 degrees, and a 20 percent rating if flexion is limited to 30 degrees. A maximum 30 percent rating is warranted for knee flexion that is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5261, limitation of extension of a leg, provides a 10 percent rating when extension is limited to 10 degrees and a 20 percent rating when extension is limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees and a 40 percent rating for extension limited to 30 degrees. A maximum 50 percent rating applies when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. VAOPGCPREC 9-2004. As relevant, DC 5257 provides ratings for recurrent knee subluxation or lateral instability. It provides a 10 percent rating for slight impairment of either knee, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, DC 5257. The Board notes that are additional knee and leg DCs. However, in this specific case, the service-connected left knee symptoms have not either manifested as separately compensable or been attributed to ankylosis, meniscus disorder, impairment of the tibia or fibula, or genu recurvatum. Separate or higher ratings under the additional knee DCs 5256, 5258, 5262 or 5263 do not merit further consideration. 38 C.F.R. §§ 4.14, 4.71a, DCs 5256, 5258, 5262, 5263. February 2010 VA primary care records showed that the Veteran complained about intermittent left knee pain and occasional left knee buckling. In April 2012, the Veteran requested an increased rating for his service-connected left knee disability. He reported that his left knee increased in severity with chronic pain and limited mobility. In January 2013, the Veteran underwent a VA knee examination by a VA certified physician’s assistant (PA-C). The PA-C diagnosed left knee patellofemoral syndrome. The Veteran reported experiencing chronic anterior knee pain. He denied taking medication, swelling, locking, instability or flare-ups. Range of motion (ROM) for left knee flexion was to 140 degrees without pain. Left knee extension was to 0 degrees without pain. Repetitive ROM study did not reveal motion loss. No functional impairment was found. Muscle strength testing was full for the left knee. Left knee stability testing was normal. Patellar subluxation or dislocation and meniscal conditions were not indicated. X-rays did not show arthritis. In an April 2016 statement accompanying the substantive appeal, the Veteran reported that he could only squat, run, or use stairs for a limited amount of time. He described sharp, stabbing left knee pain with stair activity and squatting. He reported being limited in daily activities due to left knee pain. At the November 2016 hearing, the Veteran reported that he recently started visiting a private clinic for left knee pain. He currently used a knee brace for prolonged walking. For daily activities, he had to limit bending, jumping, squatting and running. He reported that his left knee “locked up” on long walks to where it was hard to extend and bend. He confirmed that his left knee disability had increased since his last VA examination in January 2013. He also described left knee instability, especially with squatting, and buckling while walking. It posed occupational interference from slowing him down while climbing stairs. He reported flare-ups occurring at least once a week. He would place ice on his left knee and take over the counter (OTC) medication. January 2017 VA primary care records reflected that the Veteran presented for an initial evaluation. The clinician noted a history of knee pain. No pertinent clinical findings were made. In May 2017, the Veteran had a VA knee examination with a VA PA-C in connection for a right knee disability claim. As relevant, left knee ROM study and stability testing were normal. In October 2019, the Veteran had a VA-contract knee examination with a physician. The examining physician diagnosed patellofemoral pain syndrome and ACL sprain. He noted a history of left knee pain and buckling. Currently, the Veteran reported left knee pain with squatting and climbing stairs. He took OTC medication for treatment. For flare-ups, he reported worsening left knee pain. He was unable to participate in activities with his children due to left knee pain. Functional impairment was described as an inability to squat or climb stairs. Buckling occurred once a day but no real locking was indicated. Left knee ROM was to 140 degrees flexion and 0 degrees extension. Pain was noted with flexion and extension. Mild tenderness was found around the knee joint. There was evidence of pain with weight bearing but no evidence of crepitus. Repetitive ROM testing did not show additional motion loss. For repeated use over time and flare-ups, the physician reported that there would be no additional motion loss due to pain, weakness, fatigability and incoordination. For additional factors contributing to disability, the physician reported disturbance of locomotion and decreased mobility. Left knee muscle strength was complete. Left knee joint stability testing was normal. No meniscal disorder or surgical history was indicated. For assistive devices, the Veteran constantly used patello-bands due to knee pain. For functional impact, the physician reported an inability to run or squat and difficulty climbing stairs. Notably, the Veteran’s work required stair use. Below, the Board will separately analyze the relevant rating criteria based upon knee limitation of motion and instability. (a) Limitation of motion For the left knee, the Veteran currently has a 10 percent rating based upon joint pain with noncompensable motion loss. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5010; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). In order to receive a single rating in excess of 10 percent for motion loss, knee motion loss must more nearly approximate the 20 percent rating criteria in either flexion or extension leg plane. 38 C.F.R. § 4.14. This is because the currently assigned 10 percent rating for noncompensable motion loss contemplates knee pain without compensable motion loss and would be incorporated into any 10 percent rating for compensable motion loss. Id. However, the Veteran may demonstrate compensable motion loss in both the flexion and extension leg planes to warrant separate compensable ratings without pyramiding symptoms. VAOPGCPREC 9-2004. For the left knee, clinically observed ROM showed that flexion was to 140 degrees, at worst and extension was to 0 degrees, at worst. For separate compensable ratings, the Veteran would have to demonstrate flexion motion loss more nearly approximating 45 degrees, in addition to extension motion loss more nearly approximating 10 degrees. Thus, the available ROM studies show that left knee flexion and extension are appreciably greater than the compensable leg flexion and extension motion loss rating criteria under DCs 5260 and 5261. 38 C.F.R. §§ 4.71a, DCs 5260, 5261. However, the Board must consider functional impairment from flare-ups and repetitive use over time. English v. Wilkie, 30 Vet. App. 347 (2018) (the Board must adequately explain how it considered functional loss due to pain, including during flare-ups); 38 C.F.R. § §§ 4.40, 4.45, 4.59. The Veteran is competent to describe knee functional impairment. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds his reports about general functional impairment credible since joint pain is closely associated with service-connected left knee patellofemoral syndrome and ACL sprain. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The precise amount of additional knee motion loss during periods of repetitive use or flare-ups is unclear. The observed full left knee flexion and extension must be considered as a baseline to ascertain whether additional knee motion loss during flare-ups or repeated use over time more nearly approximates the compensable criteria for knee flexion or extension motion loss. Thompson, 815 F.3d at 785 ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). The Veteran’s reports primarily consist of limiting his activities due to increased left knee pain from squatting, bending, climbing stairs, among other similar movements. He additionally reported left knee locking with prolonged walking at the November 2016 hearing. The October 2019 VA-contract physician reported that repeated use over time and flare-ups would result in functional loss from pain but would not cause additional left knee motion loss. He also indicated that locking was not present. In this case, observed full left knee ROM must be considered as a baseline, and the Veteran’s descriptions of increased left knee pain with activity is too vague to infer additional compensable motion loss from flare-ups or repeated use over time when considered with the above examination findings. Id.; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5260, 5261. Therefore, even considering estimated motion loss from functional impairment, a rating in excess of 10 percent or separate compensable ratings for left knee flexion and extension motion loss is not warranted. As the preponderance of the evidence is against an increased rating, the benefit of the doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. (b) Instability The Veteran does not have a compensable rating for knee instability. 38 C.F.R. § 4.71a, DC 5257. As explained below, the Board finds that a separate 10 percent rating, but no higher, is warranted. Prior to the claim, the Veteran reported occasional left knee buckling as a symptom to a February 2010 VA primary care clinician. He did not reference left knee instability again until the November 2016 hearing. (See April 2012 and April 2016 Veteran statements; January 2013 VA examination report). He most recently referenced it at the October 2019 VA-contract examination. He is competent to identify knee instability. English, supra. The Board finds the Veteran credible in his reports. His reports are generalized but the reference to instability as a symptom description implies some degree of impairment. With due consideration to his reports, the Board finds that a separate 10 percent rating for slight instability for the left knee under DC 5257 is warranted throughout the appeal period since it was a previously reported symptom in February 2010. Id. The Board finds the evidence does not more nearly approximate moderate left knee instability under DC 5257. The VA and VA-contract examination reports from January 2013, May 2017 and October 2019 showed normal findings from joint stability testing. The Veteran’s reports about knee instability are generalized. The Veteran does not otherwise assert a greater severity of impairment beyond mild. The Board construes this background to be suggestive of slight, rather than moderate, left knee instability. In sum, the examination reports and lay statements, considered together, weigh against moderate impairment from left knee instability. For the foregoing reasons, a separate 10 percent rating, but no higher, for left knee instability is granted. As the preponderance of the evidence is against an increased rating in excess of 10 percent on the basis of instability for the left knee, the benefit of the doubt doctrine is not for application and this portion of the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Additional rating considerations The Board has considered entitlement to a total disability rating based upon individual unemployability (TDIU) as part of the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, the Veteran has not asserted any period of unemployability during the appeal. At the November 2016 Board hearing and October 2019 VA-contract examination report, there are references to the Veteran being employed. Neither the Veteran, nor his representative has raised any other issues, nor have any other 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). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.