Citation Nr: 21000017 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-39 666 DATE: January 4, 2021 ORDER The claim of entitlement to an evaluation in excess of 10 percent for patellofemoral pain syndrome of the right knee (hereinafter a right knee disability) is denied. The claim of entitlement to an evaluation in excess of 10 percent for a patellofemoral pain syndrome of the left knee (hereinafter a left knee disability) is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability during the appeal period manifested as tibia and fibula impairment with malunion with a slight knee or ankle disability. 2. The Veteran’s left knee disability during the appeal period manifested as tibia and fibular impairment with malunion with a slight knee or ankle disability. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to an evaluation in excess of 10 percent for a right knee disability, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes 5256 to 5263 (2019). 2. The criteria to establish entitlement to an evaluation in excess of 10 percent for a left knee disability, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes 5256 to 5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Marine Corps from May 1990 to August 2000. The Board acknowledges the lengthy service of the Veteran. These matters are before the Board of Veteran’s Appeals (Board) from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, that denied an increased rating for the Veteran’s right and left knee disability. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in San Diego, California in July 2019. A written transcript of that hearing has been prepared and associated with the evidence of record. In November 2019 the Veteran’s claims were remanded in a Board decision that required a new VA examination to determine the severity of the Veteran’s right and left knee disabilities as the Veteran had testified that his bilateral knee disabilities had worsened since his last VA examination in October 2016. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question between two evaluations, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2019). Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping, such as pyramiding, with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of 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, 128-30 (2000). When all the evidence is assembled, if there is a balance between positive and negative competent evidence then the issues shall be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2019). 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; see also 38 C.F.R. §§ 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). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran’s right and left knee disabilities are governed by 38 C.F.R. § 4.71a Diagnostic Code 5262 which addresses tibia and fibula impairment. The Veteran is already rated at 10 percent which requires a malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent disability rating requires malunion of the tibia and fibular with moderate knee or ankle disability. A 30 percent disability rating requires a malunion of the tibia and fibula with marked knee or ankle disability. The maximum rating of 40 percent disabling requires a nonunion of the tibia and fibula with loose motion requiring a brace. Id. The terms “slight,” “moderate” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to arrive at a just and equitable decision. 38 C.F.R. § 4.6. The use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Other diagnostic codes relating to the knee include: Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (recurrent subluxation or lateral instability), Diagnostic Code 5258 and 5259 (dislocation of semilunar cartilage and removal of semilunar cartilage), Diagnostic Codes 5261 and 5260 (limitation of flexion of the leg and limitation of extension of the leg) and Diagnostic Code 5263 (genu recurvatum). As noted below, these conditions are not shown on treatment, nor examination, and application of these diagnostic codes are not warranted. 38 C.F.R. § 4.71a. Entitlement to an evaluation in excess of 10 percent for patellofemoral pain syndrome of the right knee (hereinafter a right knee disability) See below. Entitlement to an evaluation in excess of 10 percent for a patellofemoral pain syndrome of the left knee (hereinafter a left knee disability) The Veteran contends that he is entitled to an evaluation in excess of 10 percent for his bilateral knee disabilities. The Veteran received a VA examination for his knees in July 2015 that noted the Veteran’s patellofemoral pain syndrome (PFPS). The Veteran was noted as having cracking and popping, with difficulty squatting, kneeling and had problems with inclines and uneven ground. The Veteran also reported pain on going up stairs, pain on pivoting, stiffness in cold weather, pain with running, and that he used the stationary bike but not the elliptical or treadmill. The Veteran indicated pain under his kneecap and along the side of his knee which was aggravated by activity that had worsened over time. The Veteran also reported flare ups that required his ceasing his activity and rest. He reported functional loss with prolonged standing, walking, and running with repetitive squatting, kneeling, and climbing. The Veteran also noted that his range of motion (ROM) was dependent on the severity of the episode of flare up. The Veteran’s bilateral ROM was found to be normal, flexion 0 to 140 degrees, and extension 140 to 0 degrees, with no pain on weight bearing, but with pain on compression of the patella. The examiner noted no loss of ROM with repetitive use. The examiner found that with repetitive use over time the Veteran was noted as having pain, fatigue, weakness, and lack of endurance, but the Veteran’s ROM was normal. The examiner found the Veteran had flare ups that resulted in pain, fatigue, weakness, lack of endurance and the examination is consistent with the Veteran’s statements describing functional loss during flare ups, but the examiner was not able to describe in terms of ROM. The examiner also found additional factors contributed to the Veteran’s disability such as swelling and interference with standing. The examiner found that the Veteran had normal muscle strength, no muscle atrophy, no ankylosis, no joint instability, used no assistive devices, and no arthritis. The examiner also documented the Veteran’s functional impact as pain with walking, running, squatting, kneeling, and climbing inclines and uneven ground. The examiner further found that that the swelling and ROM of the Veteran’s knees would be depending on the severity of the episode but no specific degree of limitation of ROM could be accurately estimated either orthopedically or scientifically. The Board finds that the VA examination is competent and credible. However, with more recent case law the Board finds that the VA examination holds only some probative weight as the Veteran’s ROM during “episodes” could not be estimated and would depend on the severity of the flare up. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Veteran received a VA examination in June 2016 for his knees and the Veteran’s PFPS diagnoses for both knees was noted. The Veteran reported that he managed his knees with over the counter medications and strengthening exercises. He indicated he had knee pain of 3 to 4 out of 10 on the right knee and 1 out of 10 on the left knee. The Veteran reported flare ups and functional loss with reduced ROM and weakness, but no incoordination. When the Veteran kneeled, walked several blocks, climbed stairs, or ran, he would get knee pain up to 7 out of 10 on his right knee and 9 out of 10 on his left knee that would return to baseline with rest for several hours. The Veteran also reported occasional knee swelling, clicking and popping. Due to the pain the Veteran avoided kneeling, prolonged walking, biking, and lateral movements. The examiner found the Veteran’s bilateral knee ROM to be normal, with pain on both flexion and extension, and no additional loss of ROM with repetitive use. The examiner indicated that with repetitive use over time and flare ups the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss. The examiner found that they were unable to say without mere speculation and were unable to quantify the degree of reduced ROM during repetitive use over time and flare ups as they were not observed and the Veteran’s description was a widely variable estimate and also depended on subjective factors such as individual pain tolerance. The examiner also noted additional factors of swelling, disturbance of locomotion and interference with standing but found normal muscle strength, no muscle atrophy, no ankylosis, and no instability. The examiner indicated that diagnostic testing had been performed but no arthritis was noted. The Veteran’s functional impact was noted that he avoided tasks that involved running, kneeling, or prolonged walking or stair climbing. The Board finds the VA examination to be inadequate for VA purposes due to Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). To adequately address functional loss or functional impairment of the knee or other musculoskeletal disability the examiner must express an opinion as to whether pain could significantly limit functional ability and if possible provide a picture of that functional loss in terms of additional range of motion loss due to pain on use or during flare-ups. Id. Additionally, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 required 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. The Veteran received another knee examination in October 2016 as the Veteran had also reported a worsening in his knees in his Substantive Appeal VA Form 9. The examination noted his continuing and active diagnoses of bilateral PFPS. The Veteran reported that he had physical therapy 3 years ago, that his knees had gotten more painful, had worsened, and that he could no longer do the same activities. He also reported that his left knee was worse than his right, he had stiff knees in the mornings, his knees clicked when he used stairs, pain occurred after walking 100 yards, and he had sharp burning along the outside border of his left knee if he pushed his knee against an object 3 times per week. The Veteran indicated he had no swelling, no locking, and no buckling of the knees, but that he had to straighten them after prolonged sitting. The Veteran described his flare ups as pain in, around, and under both kneecaps with pain bending and kneeling with functional loss of no biking or running. The examiner measured the Veteran’s ROM for both knees as flexion 0 to 115, extension 115 to 0 with the ROM contributing to functional loss by affecting his ability to squat, with pain on flexion, evidence of pain on weight bearing, with mild tenderness on palpation of both patella and the left knee lateral joint line, but no crepitus. The examiner found repetitive use produced no additional loss of ROM. However, with repetitive use over time and flare ups the examiner found that the examination was medically consistent with the Veteran’s descriptions and noted pain limited the Veteran’s functional ability but did not produce any additional loss of ROM. The examiner indicated additional factors bilaterally of less movement than normal, disturbances in locomotion, and interference with sitting and standing. The examiner found normal muscle strength, no muscle atrophy, no ankylosis, no instability, and on diagnostic testing no arthritis found but October 2016 x-rays did show bilateral calcification of quadriceps attachment to the patella. The examiner did document that the Veteran guarded his knees when he walked, he was stable with a one legged stance, and there was an audible “pop” when both knees were actively moved from flexion to extension, and the Veteran was not able to perform a “duck walk” maneuver because of knee discomfort. The Board finds the VA examination to be competent, credible, and with significant probative weight. The Veteran testified in a July 2019 hearing before the Board that he had increased pain, lateral pain with left and right motion, he had stiffness from sitting and standing with reduced ROM for his bilateral knees. The Veteran also indicated that he felt his stability and endurance were reduced when walking. The Veteran indicated that he had issues stepping sideways, that standing straight up was harder, he experienced fatigue, weakness, instability, and his knees had absolutely worsened since his last examination in October 2016. The Board finds the Veteran’s testimony to be competent, credible, and with significant probative weight. In November 2019 the Board remanded the Veteran’s claim for a new VA examination based on his testimony that his knees. The Veteran received a January 2020 VA examination for his knees that noted his diagnoses of bilateral PFPS. The Veteran reported pain, stiffness, reduced mobility, a limp and nerve pain. The examiner noted limping while walking, difficulty with lateral motions, lateral pain, pain with climbing stairs, inability to bend his legs and nerve pain on the sides of his knees. The Veteran also reported moderate to severe flare ups of both knees 4 to 7 times per week, lasting on average 30 minutes relieved by stopping activity and use of over the counter medications. The Veteran’s bilateral ROM was noted as flexion at 0 to 90 degrees, extension at 90 to 0 degrees with pain on both ROM that did not contribute to functional loss, with mild tenderness on palpation of the entirety of each knee, no crepitus, and no pain on weight bearing. The examiner found that repetitive use and repetitive use over time did not cause additional loss of ROM, but the examiner did note that pain limited the Veteran’s functional ability which was consistent with the Veteran’s description of functional loss for repetitive use over time. The examiner noted that during flare ups the Veteran’s ROM was flexion 0 to 85 degrees, extension 85 to 0 degrees with pain significantly limiting his functional ability during flare ups. The examiner also noted disturbances of locomotion, interference with sitting, and standing. The examiner indicated normal muscle strength, no muscle atrophy, no ankylosis, no instability, and no arthritis. The examiner indicated the bilateral knee condition made the Veteran unable to stand for more than 10 minutes at a time, unable to walk more than a quarter of a mile due to his knees and an inability to run or jump. The examiner noted no pain on non-weight bearing and on passive ROM testing bilaterally. The examiner indicated that based on the findings the Veteran’s bilateral knee condition had worsened since the October 2016 VA examination with a noted decrease in ROM due to pain. The Board finds the VA examination to be competent, credible, and with significant probative weight. VA treatment records indicated the Veteran reported sharp and worsening pain in his knees in June 2014. In April 2015 the Veteran indicated that his knee pain was worse after sitting and his knees felt “rickety” with intermittent sharp pains at the lateral borders of his patella. A doctor’s note in May 2018 indicated an orthopedic recommendation for quadricep strengthening and that bilateral knee pain worsened after prolonged sitting but generally was better after strengthening with his symptoms flaring intermittently. The Veteran in August 2019 also was noted as experiencing anterior knee pain, specifically denied any chronic patellar instability, had pain mostly on lateral movements, and occasionally clicking behind his knees. The Veteran’s knees were noted with no effusion, positive patellar compression, no significant crepitation throughout his ROM which was noted as full extension, and flexion of 0 to 120 degrees by estimation. The Board finds the VA treatment of the Veteran is competent, credible, and with significant probative weight. However, the Board notes that the ROM indicated by the VA treatment records did not confirm the use of a goniometer which is indispensable and therefore only carries some probative weight. See 38 C.F.R. § 4.46 (2019). The Veteran also submitted statements in November 2015, and his Substantive Appeal VA Form 9 submitted August 2016 indicating that his bilateral knee condition had worsened and continued to worsen and deteriorate. The Veteran additionally submitted correspondence in August 2020 that indicated diagrams drawn by the Veteran in which he describes his limited ROM for flexion and extension with functional loss due to weakness and loss of endurance in which he contends he is entitled to a 20 percent disability rating under 38 C.F.R. § 4.71a DCs 5260 and 5261 which govern limitation of flexion and extension of the leg. While the Board acknowledges the Veteran’s competence to describe the current severity of his symptoms, lay persons are not competent to consider complex medical questions to include assessments of the nature and severity of the symptoms for purposes of establishing an increased rating claim or render a complex medical opinion or diagnosis in the absence of proof of relevant training and expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). As the record does not show that the Veteran has sufficient expertise or training it is outside the competence of the Veteran to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the competent, probative medical evidence of record indicating the ROM, severity, and disability of the Veteran. The Board finds that the Veteran’s disability picture more closely resembles a 10 percent disability rating as noted by Diagnostic Code 5262 with a slight knee disability. The Veteran’s bilateral knee disability did not meet the moderate or marked disability rating which would warrant a higher disability rating. The Veteran’s bilateral knee disability produced pain on motion, pain on lateral movement, interference with prolonged sitting, standing, and walking, mild tenderness on palpation of each knee, and no pain on weight bearing. The total disability picture of the Veteran more closely resembles a slight knee disability, as all of his described symptoms are contemplated for both knees at a 10 percent disability rating. See 38 C.F.R. § 4.71a DC 5262. The Veteran also argues that under 38 C.F.R. §§ 4.40, 4.45, 4.59 that he has painful motion that should be considered with his limitation of motion. While the Board acknowledges the Veteran’s painful motion, 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). The Veteran argues that his pain and weakness caused him to have functional loss at a degree of motion that was not documented by VA examinations and was not supported by the evidence of record. As the Veteran’s most limited ROM was noted to be flexion at 0 to 85 degrees and extension at 85 to 0 degrees, he would not warrant even a compensable rating under any of the DCs that govern limitation of ROM of the knee. See 38 C.F.R. § 4.71a DCs 5003, 5260, 5261. The Board finds that it would be disadvantageous to the Veteran to rate him under Diagnostic Codes 5003, 5260, or 5261. The Board also notes that the Veteran is not entitled to a rating under 38 C.F.R. § 4.71a Diagnostic Codes 5002 to 5024 which address arthritis as the Veteran has no diagnosis of arthritis. In this case, the Veteran's lay assertions are outweighed by competent and credible medical evidence which evaluated the true extent of his bilateral knee disability. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's condition. For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment. While the Board is sympathetic to the Veteran's report of symptoms, the medical evidence does not support a higher evaluation for his bilateral knee disability at any point during the appeal period. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran’s claims for entitlement to evaluations in excess of 10 percent for his right knee disability and left knee disability are not warranted. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Teich, Cameron A. 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.