Citation Nr: 20060264 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 10-23 153 DATE: September 14, 2020 ISSUE Entitlement to a disability rating in excess of 10 percent for service-connected chronic patellar tendonitis of the right knee (a right knee disability) prior to December 18, 2019, and in excess of 20 percent thereafter. ORDER Entitlement to a disability rating in excess of 10 percent for service-connected chronic patellar tendonitis of the right knee (a right knee disability) prior to December 18, 2019, and in excess of 20 percent thereafter is denied. FINDINGS OF FACT 1. For the period prior to December 19, 2019, the Veteran’s service-connected chronic patellar tendonitis of the right knee was manifested by pain, instability, swelling, loss of strength, flare ups that cause functional loss in the Veteran’s ability to climb stairs, and the occasional use of a brace. 2. For the period from December 19, 2019, the Veteran’s service-connected chronic patellar tendonitis of the right knee was manifested initial range of motion (ROM) testing whereby extension and flexion were from 10 to 90 degrees, pain with weight bearing, and there was objective evidence of crepitus. The Veteran experiences moderate to severe flare ups that result in functional loss, pain and weakness, result in additional loss of flexion and extension from 15 to 80 degrees, and he requires the use of a cane and a brace. CONCLUSIONS OF LAW 1. For the period prior to December 18, 2019, the criteria for a disability rating in excess of 10 percent for chronic patellar tendonitis of the right knee (a right knee disability) have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5261. 2. For the period from December 19, 2019, the criteria for a disability rating in excess of 20 percent for chronic patellar tendonitis of the right knee (a right knee disability) have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from September 1990 to August 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In November 2012, jurisdiction was transferred to the Atlanta, Georgia RO. In December 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s claims file. These matters were previously remanded by the Board in decisions from August 2016, September 2017, and most recently in May 2019. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In a Rating Decision from July 2020, the RO increased the Veteran’s disability rating to 20 percent, effective December 18, 2019. The Board notes however that the grant of increased ratings during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of a rating claim when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal. The Veteran is currently employed as an electrician, and as such, is not unemployable due to service-connected disabilities. 38 U.S.C. § 7105 (b); 38 C.F.R. §§ 3.104, 20.1103. VA’s Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159 (b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). In sum, the Board is satisfied that the originating agency properly processed the Veteran’s claim after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Entitlement to a disability rating in excess of 10 percent for service-connected chronic patellar tendonitis of the right knee (a right knee disability) prior to December 18, 2019, and in excess of 20 percent thereafter. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Furthermore, when evaluating the record, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event. Only when a preponderance of the evidence is against the claim is the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. A 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. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (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, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are related considerations. 38 C.F.R. § 4.45. The Veteran’s right knee disability is currently rated under Diagnostic Code 5261. Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5260 (limitation of flexion). Diagnostic Code 5257 provides that an evaluation of 10 percent is assigned for slight recurrent subluxation or lateral instability, an evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe. Diagnostic Code 5260 pertains to limited flexion of the knee. Flexion limited to 60 degrees is noncompensable. A 10 percent rating applies when flexion is limited to 45 degrees. A 20 percent rating applies when flexion is limited to 30 degrees. A 30 percent rating applies when flexion is limited to 15 degrees. Diagnostic Code 5261 pertains to limited extension. Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. Under Diagnostic Code 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating when there is malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent rating for malunion of the tibia and fibula with marked knee or ankle disability; and a maximum rating of 40 percent for nonunion of the tibia and fibula with loose motion, requiring brace. 38 C.F.R. § 4.71a. The VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 (which provides for a 10 percent rating for a noncompensable limitation of motion or painful motion of an affected joint) and 5257, provided that a separate rating must be based upon additional disability. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Also, separate ratings may be assigned for limitation of flexion, limitation of extension, and subluxation of the same knee. Specifically, where a Veteran has both a compensable limitation of flexion, compensable subluxation, and a compensable limitation of extension of the same knee, the limitations must be rated separately to adequately compensate for functional loss associated with the disability. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). A recent Court decision also addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. a) The Period Prior to December 18, 2019 The Veteran is claiming that his service-connected right knee disability is worse than is currently rated. Specifically, the Veteran wrote in October 2009 that “it takes me a long time to recover from a trip up any of the stairs at my facility. The condition is getting worse…” In a statement received by VA in April 2010, the Veteran wrote that “any bending with weight is causing pain. If I bend it too far, it wants to collapse.” As noted above, the Veteran also testified in December 2013 before the undersigned Veterans Law Judge. The Veteran testified that there is instability with his right knee, that it often gives out on stairs, that it often swells up and he has to apply ice or heat, and that it limits his mobility, particularly at night depending “on the amount of output.” The Veteran further testified that he “trips up” more than he used to, and that there is more pain on motion than in the past. Finally, the Veteran testified that “It loses power … the knee just sort of has no – my leg loses power in the knee there for some reason.” The Veteran is competent to report as to the symptoms he experiences. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Turning to the medical evidence, the Board is reminded that a Decision from August 2016 determined that the March 2011 VA examination was inadequate as it had not considered the lay statements of the Veteran. The Board Decision from September 2017 determined that the January 2017 VA examination was inadequate, as the examiner did not conduct any passive, weight-bearing or nonweight-bearing range of motion testing, pursuant to Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The Board is finally reminded that in its May 2019 Decision, it determined that the January 2018 VA-contracted LHI examination was inadequate pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, examinations from March 2011, January 2017 and January 2018 are all inadequate. The Board notes that VAMC records for the time period prior to December 19, 2019 generally describe the Veteran’s complaints of pain associated with his right knee. The Veteran has attempted to be involved with physical therapy but does not attend regular sessions “due to [his] work schedule.” VAMC records further note his complaints of pain generally in his right knee, and difficulty with stairs, walking on inclines, squatting and kneeling. The Veteran has described flare ups which cause a functional loss, although formal examinations have not occurred which measure the Veteran’s range of motion (ROM). The Veteran is generally prescribed ibuprofen for the pain, as well as the use of ice packs and hot packs. At no stage has the Veteran described ankylosis of the right knee, nor recurrent subluxation, nor semilunar cartilage/effusion into the joint. Genu recurvatum has not been identified in any of the VAMC records. There is no evidence that the VAMC providers were not competent or credible, and as the reports are based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the severity of the Veteran’s service-connected right knee disability for the period prior to December 19, 2019 more nearly approximates the 10 percent disability rating. While the only available VA examinations were all deemed to be inadequate for various reasons, the Board still has reviewed years of VAMC records. The Veteran has consistently complained of pain associated with his right knee, that causes a functional loss in his ability to climb stairs, walk on inclines, squat, and kneel. He has competently described flare ups, but no VAMC records have described those flare ups as having an additional loss on his ROM. These flare ups, which result in instability, were further confirmed in the Veteran’s testimony. As such, the only available evidence does not indicate that the Veteran’s service-connected right knee disability warrants a higher disability rating for the period prior to December 19, 2019, as the Veteran is already being compensated for limited ROM, his knee instability, and the associated pain during flare ups. The Board has also reviewed other relevant diagnostic codes and finds that the Veteran is appropriately rated. At no point has he demonstrated ankylosis (DC 5256), recurrent subluxation (DC 5257), cartilage, semilunar, dislocated with frequent episodes of locking and effusion into the joint (DC 5258), impairment, including nonunion or malunion of the tibia and fibula (DC 5262), and/or Genu recurvatum (DC 5263). As such, the Board finds that the 10 percent disability rating more nearly approximates the current severity of the Veteran’s service-connected right knee disability, and the preponderance of the evidence is against an increase to that rating. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). b) The Period After December 19, 2019 As noted above, the Board remanded this matter for a VA examination in May 2019. That VA examination occurred December 2019. The Veteran was seen in person, and his claims file was reviewed. The VA examiner also reviewed the remand directives from the Board’s May 2019 Decision. During the exam, the Veteran reported flare ups that occur daily. The examiner noted these flare ups to be “moderate to severe,” and that they can “last a few days.” The examiner noted that they are precipitated by stairs, getting in and out of cars and chairs, and that they are alleviated by time. On initial range of motion (ROM) testing, the Veteran exhibited flexion and extension from 10 to 90 degrees. The Veteran described pain with weight bearing, and there was objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional range of motion loss, however on repeated use over time, the examiner noted pain and weakness with ROM from 10 to 85 degrees. Regarding flare ups, the examiner noted that the Veteran exhibited additional ROM loss due to pain and weakness, and that his flexion and extension was further limited from 15 to 80 degrees. Further factors included weakened movement, swelling, disturbance of locomotion, and an interference with sitting and standing. On muscle strength testing, the Veteran was rated at 3 out of 5. No further factors, including ankylosis and/or meniscal conditions were noted, and the Veteran occasionally uses a brace and a cane. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran’s right knee disability more nearly approximates the 20 percent disability rating for the period after December 19, 2019. To begin, the December 2019 VA examination was the first time that the Veteran had exhibited a reduced range of motion testing from 10 to 90 degrees. That ROM was reduced to 15 to 80 degrees during a flare up, based upon the estimation from the VA examiner. This was the first time that his additional weakened movement and swelling were noted, in addition to his reduced muscle strength being tested at a 3 out of possible 5. The Veteran’s limited ROM, particularly as it relates to his limitation of extension, more nearly approximates the 20 percent disability rating, as he is limited to 15 degrees. DC 5261. Again, the Board has also reviewed other relevant diagnostic codes. At no point has he demonstrated ankylosis (DC 5256), recurrent subluxation (DC 5257), cartilage, semilunar, dislocated with frequent episodes of locking and effusion into the joint (DC 5258), impairment, including nonunion or malunion of the tibia and fibula (DC 5262), and/or Genu recurvatum (DC 5263). (Continued on next page.) As such, for the period after December 19, 2019, the Board finds that the 20 percent disability rating more nearly approximates the current severity of the Veteran’s service-connected right knee disability, and the preponderance of the evidence is against an increase to that rating. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.