Citation Nr: 21000181 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 10-22 913 DATE: January 4, 2021 ORDER Entitlement to an initial disability rating of 20 percent, but no higher, for left knee degenerative joint disease, patellofemoral syndrome, with limitation of flexion is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a separate disability rating of 10 percent, but no higher, for left knee degenerative joint disease, patellofemoral syndrome, with instability is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Throughout the claim period, the Veteran’s symptoms of left knee degenerative joint disease, patellofemoral syndrome, with limitation of flexion more nearly approximated range of motion of flexion of 30 degrees and extension of 0 degrees with consideration of functional loss during flare-ups. The Veteran’s symptoms did not more nearly approximate range of motion of flexion of 15 degrees, to include consideration of functional loss during flare-ups. 2. Throughout the claim period, the Veteran’s left knee degenerative joint disease, patellofemoral syndrome, produced a slight left knee lateral instability, which was characterized as knee giving way. However, the evidence of record does not show that these symptoms more nearly approximated moderate or severe lateral instability or subluxation. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 20 percent, but no higher, for left knee degenerative joint disease, patellofemoral syndrome, with limitation of flexion are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.71a, Diagnostic Codes (DCs) 5003-5260. 2. The criteria for a disability rating of 10 percent, but no higher, for left knee degenerative joint disease, patellofemoral syndrome, with instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971 to November 1971, September 1984 to February 1985, September 2006 to January 2007, and performed service in the U.S. Army Reserve. This case initially came the Board of Veterans’ Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for left knee degenerative joint disease, patellofemoral syndrome, with an initial evaluation of 10 percent, effective January 5, 2007. The Veteran timely appealed the initial 10 percent evaluation assigned. The Board previously remanded the claim in August 2013, September 2014, and August 2017 for further development.  The Agency of Jurisdiction (AOJ) obtained examinations in May2018 and June 2019 which, for the reasons below, are both adequate to decide the claim. Therefore, the AOJ substantially complied with the Board’s August 2017 remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).    Disability ratings  Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged.  Fenderson v. West, 12 Vet. App. 119 (1999).  In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.   38 C.F.R. §§ 4.1, 4.2, 4.10.    Where there is a question as to which of two evaluations 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.    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 noncompensable disability rating when extension is limited to 5 degrees, a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Id. 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. See VAOPGCPREC 9-2004. DC 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability of the knee, a 20 percent rating for moderate recurrent subluxation or lateral instability of the knee, and a 30 percent rating for severe recurrent subluxation or lateral instability of the knee. VA General Counsel provided guidance in VAOPGCPREC 23-97 (July 1997) that a Veteran who has instability of the knee may be rated separately under DC 5257, provided that a separate rating must be based upon additional disability. The terms slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe 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. The Court has emphasized that when assigning a disability rating it is necessary to consider limitation of a joint’s functional ability due to flare-ups, fatigability, incoordination, and pain on movement, or when it is used repeatedly over a period of time, functional loss due to flare-ups, fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  In Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Joints should be tested 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.  38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016).     In Sharp v. Shulkin, 29 Vet. App. 26 (2017), 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.  Id.    The Board notes that there are additional DCs that pertain to the knee. However, as shown in the multiple VA examination, the service-connected left knee disability symptoms in this case have not either manifested as or been attributed to ankylosis, meniscus disorder, semilunar cartilage removal, impairment of the tibia or fibula, or genu recurvatum. Therefore, separate or higher disability ratings under the additional knee DCs do not merit further consideration. 38 C.F.R. §§ 4.14, 4.71a; DCs 5256, 5258, 5259, 5262, 5263. Left knee degenerative joint disease, patellofemoral syndrome, with limitation of flexion The Veteran's service-connected left knee degenerative joint disease, patellofemoral syndrome, is currently rated as 10 percent disabling under DCs 5003 and 5260. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § § 4.27. Here, the use of DCs 5003-5260 reflects that the Veteran's left knee disability is partially described as degenerative arthritis under DC 5003 and that the rating assigned is based on limitation of flexion under DC 5260. During an April 2008 VA examination, the Veteran reported functional limitations of standing and walking. He was able to stand more than one, but less than three hours, and was able to walk one-quarter of a mile, but not more than one mile. There was instability, pain, stiffness, and locking of the left knee joint. The Veteran also reported severe flare-ups two to three times a week that lasted one or two days and led to difficulty climbing stairs, walking, or running. Active flexion motion against gravity was 10 to 100 degrees with pain beginning at 20 degrees and ending at 100 degrees. Passive range of motion was 0 to 110 degrees with pain beginning at 20 degrees and ending at 110 degrees. There was loss of motion on repetitive use of 20 to 100 degrees with pain being the factor most responsible for additional loss. Active extension motion against gravity was minus 10 to minus 10 degrees with pain beginning at minus 10 degrees and ending at minus 10 degrees. Passive range of motion was minus 10 to 0 degrees with pain beginning at minus 10 degrees and ending at 0 degrees. There was no additional loss of motion on repetitive use. An October 2013 VA treatment note indicated the Veteran fell after his left knee gave way. The Veteran additionally reported that his left knee usually gives way. During a February 2014 VA examination, the Veteran reported severe pain while walking and flare-ups of difficulty walking. Range of motion of flexion and extension was 90 to 0 degrees with painful motion beginning at 60 degrees flexion. The Veteran was able to perform repetitive use testing with three repetitions with range of motion of flexion and extension of 90 to 0 degrees. He did not have additional limitation of range of motion following repetitive use testing, but he did have less movement than normal and pain on movement. The examiner would not speculate as to additional limitation of range of motion during flare-ups as there was no positive flare-up during the examination. Joint stability testing was normal, and there was no patellar subluxation/dislocation. During an April 2015 VA examination, the Veteran reported he experienced daily knee pain which limited him during activities of daily living and flare-ups where he could not walk. The Veteran also endorsed functional loss or functional impairment of an inability to walk distances. Left knee flexion and extension was 85 to 0 degrees. Range of motion itself contributed to functional loss such as knee bending activities. Pain was noted on examination of the left knee during flexion and resulted in functional loss. There was no evidence of pain on weight-bearing. The Veteran was able to perform repetitive use testing with at least three repetitions in the left knee without additional functional loss or range of motion. The Veteran was not examined immediately after repetitive use over time or during a flare-up.  The examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time or during flare-ups.  The examiner was unable to say without mere speculation whether pain, weakness, incoordination, and fatigability limited functional ability with repeated use over time or during flare-ups. The examiner reasoned that all musculoskeletal disorders present in an individual could potentially cause functional limitations during repetitive use over a period of time or during flare-ups. However, to describe a functional limitation in terms of severity or terms such as significant versus non-significant based on a possible future event would be mere speculation. There was no history of recurrent subluxation or lateral instability in the left knee and joint stability testing was normal. The Veteran reported he used a cane regularly. During a May 2018 VA examination, the Veteran reported ongoing left knee pain and flare-ups of the left knee that were made worse with walking. There was no objective evidence of pain on weight or non-weight-bearing and no pain on active and passive range of motion. The examiner was unable to test the left knee for range of motion and repetitive use testing. He indicated that it was his professional medical opinion that the Veteran displayed excessive dramatization and grossly exaggerated his responses to very normal physical examination maneuvers. The Veteran demonstrated significant discomfort with what was specifically and deliberately very light palpitation of his knees. It seemed he was more focused on attempting to put on what he hoped would be a very convincing demonstration of limitations on his physical examination. His physical examination findings were clearly inconsistent with his documented medical condition. The Veteran was not examined immediately after repetitive use over time or during a flare-up.  The examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time or during flare-ups. Pain, weakness, incoordination, and fatigability did not limit functional ability with repeated use over time or during flare-ups. There was no history of recurrent subluxation or lateral instability in the left knee and joint stability testing was not tested due to the Veteran’s excessive dramatization. The Veteran reported he used a cane and brace regularly. During a June 2019 VA examination, the Veteran reported pain, recurrent swelling, and stiffness in the left knee with difficulty standing from sitting and lowering himself into a chair. He indicated his knee suddenly gave way at times when walking. Several times a week when he walked a little more than usual his knee would flare-up, and he would sit and rest and sometimes even lie down and rest. The Veteran also noted he experienced severe flare-ups three times a week that lasted one to two hours with range of motion of flexion and extension 30 to 0 degrees. There was also functional loss or functional impairment of decreased endurance to standing and walking. Range of motion testing was 60 to 0 degrees flexion to extension. Range of motion itself did not contribute to functional loss, and pain noted on flexion did not result in or cause functional loss. There was objective evidence of pain on weight or non-weight-bearing and pain on active and passive range of motion and of the opposing joint. The Veteran was able to perform repetitive use testing with at least three repetitions. The examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time or during flare-ups. Pain limited functional ability with repeated use over time or during flare-ups and was described in terms of range of motion of 30 to 0 degrees flexion and extension. There was no history of recurrent subluxation or lateral instability in the left knee and joint stability testing was normal. The Veteran reported he used a cane, walker, and brace regularly. For the following reasons, an initial disability rating of 20 percent for left knee degenerative joint disease, patellofemoral syndrome, with limitation of flexion is warranted. The evidence of record reflects that flexion of the Veteran’s left knee degenerative joint disease, patellofemoral syndrome, more nearly approximated 30 degrees limitation of flexion. As noted above, the June 2019 VA examiner found that flare-ups resulted in range of motion of flexion and extension of approximately 30 to 0 degrees. Thus, the Veteran’s left knee degenerative joint disease, patellofemoral syndrome, symptoms more nearly approximated the criteria for a 20 percent initial disability rating. Furthermore, an “effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined.”  Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Thus, given that the Veteran has indicated that the severity of his left knee disability symptoms, including during flare-ups, has been consistent throughout the claim period, entitlement to a 20 percent initial disability rating for the Veteran’s left knee disability is warranted. However, the evidence of record does not reflect that the Veteran’s left knee disability symptoms more nearly approximated limitation of flexion of 15 degrees, to include consideration of functional loss due to flare-ups, throughout the entirety of the claim period.  Thus, the criteria for an initial disability rating higher than 20 percent have not been met for the entirety of the claim period. Furthermore, as the above discussed evidence does not reflect compensable limitation of extension, even when considering additional functional loss due to flare-ups, a separate rating for limitation of extension is not warranted.   For the foregoing reasons,  a 20 percent initial disability rating is warranted for service-connected left knee degenerative joint disease, patellofemoral syndrome, on the basis of limitation of flexion. Left knee degenerative joint disease, patellofemoral syndrome, with instability As noted above, DC 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability of the knee, a 20 percent rating for moderate recurrent subluxation or lateral instability of the knee, and a 30 percent rating for severe recurrent subluxation or lateral instability of the knee. VA General Counsel provided guidance in VAOPGCPREC 23-97 (July 1997) that a Veteran who has instability of the knee may be rated separately under DC 5257, provided that a separate rating must be based upon additional disability. For the following reasons, the Veteran’s left knee instability symptoms warrant a separate rating and more nearly approximate the criteria for a 10 percent disability rating. The Veteran reported in October 2013 and June 2019 that his left knee gives way. However, the February 2014, April 2015, and June 2019 VA examination reports revealed normal clinical findings for left knee stability. In English v. Wilkie, 30 Vet. App. 347, 349 (2018), the Court held that “objective” evidence is not required to establish knee instability under DC 5257 and the Board cannot categorially find medical evidence more probative than lay evidence. The Veteran’s lay statements reflect that he has consistently experienced instability and a separate rating for recurrent subluxation or lateral instability is therefore warranted. However, the repeated normal findings regarding left knee stability reflect that the symptoms did not more nearly approximate moderate subluxation or lateral instability. For the foregoing reasons, the evidence is at least evenly balanced as to whether there has been slight recurrent subluxation or lateral instability. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a separate 10 percent disability rating for left knee degenerative joint disease, patellofemoral syndrome, with instability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As the preponderance of the evidence is against a higher disability rating, the benefit of the doubt doctrine is not otherwise for application in this regard. The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. 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 H. Styer, 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.