Citation Nr: 20054491 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 13-25 066 DATE: August 18, 2020 ORDER Entitlement to a noninitial rating of 10 percent, but no higher, for service-connected right knee patellofemoral pain syndrome from March 9, 2009 to February 19, 2018 is granted. Entitlement to a noninitial rating in excess of 10 percent for service-connected right knee patellofemoral pain syndrome from February 19, 2018 is denied. FINDINGS OF FACT 1. For the period from March 9, 2009 to February 19, 2018, the Veteran’s right knee patellofemoral pain syndrome was manifested by painful motion, but was not manifested by objective evidence of flexion limited to 45 degrees or less, extension limited to 10 degrees or more, or evidence of lateral instability or recurrent subluxation. 2. For the period from February 19, 2018 to the present, the Veteran’s right knee patellofemoral pain syndrome has been productive of painful, but otherwise noncompensable motion, with no evidence of lateral instability or recurrent subluxation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a noninitial 10 percent rating, but no higher, for service-connected right knee patellofemoral pain syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R.§§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for entitlement to a noninitial rating in excess of 10 percent for service-connected right knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R.§§ 3.102, 4.40, 4.45, 4.59, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2002 to February 2006. This appeal is before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a videoconference hearing before the undersigned. In August 2017, the Board denied the issue of entitlement to an increased rating for a right knee disability. The Veteran appealed this issue. In July 2018, the Court of Appeals for Veterans Claims (the Court) vacated the Board’s August 2017 decision pursuant to a Joint Motion for Partial Remand (JMPR) and remanded it to the Board for compliance with its instructions. In January 2019, the Board also remanded the Veteran’s claim for entitlement to an increased rating for a right knee disability. The Board found that the Veteran’s October 2016 VA examination was not adequate, and that the Veteran should be provided a new VA examination. That development having been completed, the Veteran’s claim is once again before the Board and will be adjudicated below. Increased Ratings Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. 38 C.F.R. § 4.7. In regard to rating claims involving the musculoskeletal system, a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40. The factors of disability reside in reductions of normal excursion of movements in different planes and ratings should consider (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.), (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.), (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.), (d) excess fatigability, (e) incoordination or impaired ability to execute skilled movements smoothly, and (f) pain on movement, swelling, deformity or atrophy of disuse and instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. 38 C.F.R. § 4.45. Functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589 (1993). Pain itself does not rise to the level of functional loss as contemplated by VA regulations, but pain may result in functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran contends that he is entitled to a higher rating for his right knee disability. In a May 2008 rating decision, the Veteran’s claim for service connection for a right knee condition was granted with an evaluation of 0 percent, effective February 25, 2006. In March 9, 2010, the Veteran filed an increased rating claim for a right knee injury. See March 2010 Statement in Support of Claim. The Veteran has continuously appealed his claim since that time. As such, the period on appeal is from March 9, 2009 through the present. The Board notes that in a June 2018 rating decision, the Veteran’s right knee disability, which was 0 percent disabling, was increased to 10 percent disabling, effective February 19, 2018. This increased rating was confirmed and continued in a July 2020 Supplemental Statement of the Case (SSOC). As this does not represent a grant of the full benefits sought, the Veteran’s claim remains before the Board. In addition, there are now two periods on appeal. The questions for the Board are whether the Veteran is entitled to a compensable rating between the period of March 9, 2009 to February 19, 2018, and whether the Veteran is entitled to a rating in excess of 10 percent from February 19, 2018 to the present. Limitation of motion of the knee is rated under DC 5260 (limitation of flexion) and DC 5261 (limitation of extension). Normal knee motion is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. 38 C.F.R.§4.71a. Under Diagnostic Code 5260, flexion limited to 60 degrees is rated zero percent. The criteria for a 10 percent rating is flexion limited to 45 degrees. The criteria for a 20 percent rating is flexion limited to 30 degrees. The criteria for a 30 percent rating is flexion limited to 15 degrees. Under Diagnostic Code 5261, extension limited to 5 degrees is rated zero percent. The criteria for a 10 percent rating is extension limited to 10 degrees. The criteria for a 20 percent rating is extension limited to 15 degrees. The criteria for a 30 percent rating is extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. The maximum 50 percent rating is assigned for extension limited to 45 degrees Separate ratings also are permissible for limitation of flexion and limitation of extension of the same knee under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). 1. Entitlement to a noninitial compensable disability rating for service-connected right knee patellofemoral pain syndrome from March 9, 2009 to February 19, 2018 Turning to the evidence of record, the Veteran’s private treatment records show that he was seen in the emergency room in September 2015 for an acute idiopathic gout involving the right knee. The Veteran was afforded a VA examination in October 2016. At this examination, the Veteran was not diagnosed with any right knee condition. The examiner stated that the Veteran had no indication of patellofemoral pain syndrome. There were no symptoms, physical findings, or x-ray findings of patellofemoral pain syndrome. The examiner indicated that while the Veteran complained of intermittent swelling, this was due to his gout and not his patellofemoral pain syndrome. The Veteran’s ranges of motion and muscle strength were normal. He did not exhibit ankylosis, arthritis, or instability. The examiner opined that the Veteran had gout with high uric acid levels and periodically experienced symptoms such as swelling, due to the gout. The Board has previously determined that the October 2016 VA examination was inadequate as the examination was not compliant with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). Pursuant to Correia, an adequate VA knee examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and non-weight-bearing conditions. The October 2016 VA examiner did not provide range of motion testing results on both active and passive motion and, in both weight-bearing and nonweight-bearing conditions. The Veteran’s private treatment records from Dr. L.G. show that in November 2016, the Veteran reported joint stiffness, swollen knees, redness, warmth, crepitation, and painful swelling. There was effusion with crepitus on range of motion. X-rays showed minor medial compartment joint space narrowing. At his April 2017 Board hearing, the Veteran testified that he currently had instability in the right knee. He reported that at night, he had to sleep with pillows between his legs and constantly iced his knees. He also reported constant throbbing and pain in his right knee. He described that when he woke up, he experienced pain in his knee, and when he went to sleep, he continued to experience knee pain. The Board notes that the Veteran has not met the minimum objective criteria for a 10 percent disability rating based on limitation of flexion or extension during this appellate period. Throughout this period, there is no evidence that the Veteran’s service-connected right knee condition caused limited flexion to 45 degrees or limited extension to 10 degrees. However, the Board has considered whether an increased rating can be assigned for functional impairment of the Veteran’s service-connected disability and acknowledges the subjective complaints of pain made throughout the course of the Veteran’s claim. Specifically, the Board observes that the Veteran has articulated experiencing pain in his right knee on several occasions throughout the period on appeal and is sympathetic to this. Under 38 C.F.R. § 4.59, consideration of functional loss due to painful motion is to be rated at least the minimum compensable rating for that particular joint. In this case, the Board determines that although the Veteran does not meet the criteria for a compensable rating under DCs 5260 or 5261, the assignment of a 10 percent rating, but no higher, is warranted under DC 5260 given his competent and credible reports of pain on motion. The Board has also considered whether the Veteran is entitled to any additional separate ratings for his right knee disability. The clinical evidence does not establish ankylosis, removal or dislocation of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for application. Regarding whether a separate rating for lateral instability or recurrent subluxation is warranted for the right knee, the Board finds that a separate rating under DC 5257 is not warranted as the evidence has not shown that the Veteran has slight knee instability. In English v. Wilkie, 30 Vet. App. 347. 35253 (2018), the Court found that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence. Nonetheless, in the present case, the Veteran reported that he had instability on only one occasion, at the Board hearing in 2017, and did not otherwise report instability at any other time. As such, the Board does not find the Veteran’s report to be credible and does not find that the evidence of record supports awarding a separate 10 percent rating for instability based on a singular statement from the Veteran for an appeal period of nearly 10 years. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that a 10 percent rating, but no higher, is warranted for right knee painful motion for the period on appeal. 2. Entitlement to a noninitial rating in excess of 10 percent for service-connected right knee patellofemoral pain syndrome from February 19, 2018 The Veteran underwent a VA examination in February 2020. The Veteran reported that his knee condition began in 2006, but has worsened since then. He stated that he currently treated the condition with over-the-counter medicine, annual cortisone injections, using a cane, and occasionally a wheelchair. He reported that he experienced swelling, stiffness, aches, and sharp pain. The Veteran did not report flare-ups, but did report functional loss. He described that he had to use an assistive device for mobility, could not sit, stand or walk for long periods of time, and walks with a limp. Initial range of motion testing showed abnormal results, with the Veteran’s flexion from 0 to 100 degrees, and extension 100 to 0 degrees. The examiner noted pain on the examination that causes functional loss, as well as tenderness to palpation in the medial patella with a severity of 4 out of 10. The examiner also noted evidence of pain with weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least 3 repetitions, with additional loss of range of motion after 3 repetitions. Range of motion testing after 3 repetitions showed flexion 0 to 90 degrees, and extension 90 to 0 degrees. The examiner noted that pain, fatigue, and weakness caused functional loss. Described in range of motion, upon repeated use over time, the Veteran’s flexion was estimated to be 0 to 85 degrees and extension was 85 to 0 degrees. The examiner again noted that pain, fatigue, and weakness caused functional loss upon repeated use over time. The examiner noted that additional factors contributing to disability were disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing was normal, and the Veteran did not have any muscle atrophy or ankylosis. The Veteran also did not exhibit any recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was performed, and the Veteran had normal results for anterior instability, posterior instability, medial instability, and lateral instability. The examiner found that the Veteran did not have a meniscus condition. Diagnostic testing was performed, and degenerative or traumatic arthritis was documented, but there were no other significant diagnostic test findings. The Veteran was noted to require occasional use of a wheelchair and crutches, constant use of a knee brace, and regular use of a cane. The examiner also found objective evidence of pain on passive range of motion testing and when the right knee was used in non-weightbearing. Ultimately, the examiner found that the Veteran’s condition impacted his ability to perform occupational tasks, including decreased productivity due to bilateral intermittent patellofemoral pain syndrome with degenerative arthritis that collectively caused limitations in prolonged standing and walking. Upon review of the evidence, the Veteran has not demonstrated compensable limited flexion or limited extension, even when considering the effects of functional impairment, repetitive motion, and repeated use over time. There is also no medical or lay evidence of lateral instability or recurrent subluxation of the right knee. While range of right knee motion was regarded as abnormal, and there was objective evidence of pain on range of motion testing in the February 2020 examination, the Veteran has already been awarded a 10 percent rating for painful motion for this period on appeal. At the present, the record shows no medical or lay evidence of impairment of the tibia/fibula, instability, a meniscus condition, ankylosis, or genu recurvatum. As such, DCs 5262, 5257, 5258, 5259, 5256, and 5263 are not for application. In light of the foregoing, the Board concludes that a rating in excess of 10 percent for the Veteran’s right knee disability is not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.