Citation Nr: 21000510 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 13-05 907 DATE: January 5, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for chronic right knee sprain with patellofemoral pain syndrome status post arthroscopic surgery is denied. Entitlement to an evaluation in excess of 10 percent for instability associated with chronic right knee sprain with patellofemoral pain syndrome status post arthroscopic surgery is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability has been shown to exhibit painful motion, however, it has not been shown to have flexion functionally limited to 45 degrees or less, extension functionally limited to 5 degrees or more, a dislocated meniscus, a symptomatic removed meniscus, ankylosis, an impairment of the tibia and fibula, or genu recurvatum. 2. The Veteran’s right knee disability has been shown to exhibit slight instability, which is reflected by the Veteran’s credible reports of falls, as well as his use of assistive devices such as orthotics, a brace, and a cane. However, his right knee disability has not been shown to exhibit moderate instability. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for chronic right knee sprain with patellofemoral pain syndrome status post arthroscopic surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5024-5260. 2. The criteria for an evaluation in excess of 10 percent for instability associated with chronic right knee sprain with patellofemoral pain syndrome status post arthroscopic surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 2005 to May 2008. The matter is on appeal before the Board from a September 2010 rating decision. The Veteran and his mother provided testimony at a Board hearing in February 2017 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2017 the Board remanded the issue for further development. Development has been completed, and the matter has returned to the Board for further adjudication. Increased Rating Right Knee Procedurally, in a July 2008 rating decision, the Veteran was granted service connection for a right knee disability with a 10 percent evaluation effective May 26, 2008. In June 2010, the Veteran filed a claim requesting an increased rating for his right knee disability. A September 2010 rating decision denied the Veteran a rating in excess of 10 percent for his right knee disability. In September 2011, the Veteran filed a Notice of Disagreement (NOD), and a Statement of the Case (SOC) was issued in January 2013. In a January 2013 rating decision, it was found that there was clear and unmistakable error in the September 2010 rating decision, in failing to assign a separate compensable evaluation for slight instability. As such, the Veteran was granted a separate 10 percent evaluation for slight instability associated with his right knee disability effective July 30, 2010. The Veteran filed a VA Form 9 Appeal to the Board in February 2013, in which it was noted that when walking down stairs his knees give out, and he has pain. As previously noted, the Board remanded the issue in August 2017 to provide the Veteran with a new VA examination. Subsequently, a Supplemental Statement of the Case (SSOC) was issued in October 2018. The Veteran’s right knee disability is rated under DC 5024-5260 and DC 5257. The normal range of motion (ROM) for the knee is from 140 to 0 degrees for extension, and from 0 to 140 for flexion. 38 C.F.R. § 4.71a, Plate II. DC 5024 evaluates tenosynovitis, and will be rated on limitation of motion of the affected parts, such as with degenerative arthritis. 38 C.F.R. § 4.71a, DC 5024. DC 5260 evaluates the limitation of flexion for the knee. A noncompensable rating is assigned for flexion limited to 60 degrees, a 10 percent rating is assigned for flexion limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, and a 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5261 evaluates the limitation of extension for the knee. A noncompensable rating is assigned for extension limited to 5 degrees, a 10 percent rating is assigned for extension limited to 10 degrees, a 20 percent rating is assigned for extension limited to 15 degrees, a 30 percent rating is assigned to extension limited to 20 degrees, a 40 percent rating is assigned for extension limited to 30 degrees, and a 50 percent rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. DC 5257 evaluates recurrent subluxation or lateral instability of the knee. A 10 percent rating is assigned for slight recurrent subluxation or lateral instability, a 20 percent rating is assigned for moderate recurrent subluxation or lateral instability, and a 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. DCs 5258 and 5259 evaluate impairment of the semilunar cartilage (synonymous with the meniscus), DC 5256 evaluates ankylosis of the knee, DC 5262 evaluates impairment of the tibia and fibula, and DC 5263 evaluates genu recurvatum. The medical record does not document any of these conditions for the Veteran’s right knee, and therefore these DCs are not applicable and will not be further discussed. Over the period on appeal, the Veteran has undergone three VA examinations pertaining to his right knee disability. The most recent examination was in November 2017, at which the Veteran reported that his right knee hurts all the time, and that he falls a lot when his right knee gives out. Walking, standing, and sitting all cause pain. He utilizes a knee brace and orthotics in his shoes to help keep his knee at a better angle. He reported that stairs are also difficult to maneuver, and that he recently moved from a two-story house to a one-story house. It was noted that the Veteran limps on his right leg. He relayed being told that he needs a knee replacement but that he was too young. The Veteran did not report having flare-ups of his knee, but he did report functional impairment of his knee due to increased pain with sitting, standing, walking, and climbing stairs. The Veteran’s ROM was from 0 to 90 degrees for both flexion and extension. He was noted to exhibit pain with both flexion and extension, and with weight bearing. There was mild tenderness to the medial and lateral compartments upon palpation of the joint and associated soft tissues. There was no evidence of crepitus. After repetitive use testing, there was no additional functional loss or loss to ROM. The examiner reported that the Veteran was not being examined immediately after repetitive use over time, however, the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner reported that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time. The Veteran’s muscle strength was rated as five out of five for normal, and he did not have muscle atrophy. There was no ankylosis. The Veteran did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. He underwent joint stability testing, and he was not found to have joint instability. It was reported that the Veteran did not have patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, any other tibial or fibular impairment, or any meniscal conditions. He was noted to have a scar on his right knee, which he is service-connected for, that was too faint to measure, non-tender, and had the skin intact. There was no objective evidence that the scar was painful, unstable, or had a total area equal to or greater than 39 square centimeters. The Veteran relayed the occasional use of a brace, and the constant use of orthotics. Imaging studies were noted to be available, and the Veteran did not have documented arthritis or any other significant diagnostic findings. The Veteran underwent a VA examination in June 2016, at which he reported that his bilateral knee conditions had gotten worse with bilateral medial knee pain. He relayed bilateral locking with walking, where he will fall forward. He denied swelling. It was noted that he had hurt his left shoulder due to a fall from his knee. The Veteran did not report having flare-ups of his knee, but he did report functional impairment of his knee due to limited walking with instability that causes him to fall, and that he cannot climb stairs or squat. The Veteran’s ROM was from 0 to 110 degrees for both flexion and extension. He was noted to exhibit pain with flexion and with weight bearing. There was moderate tenderness upon palpation of the joint and associated soft tissues that was related to patellofemoral syndrome. There was no evidence of crepitus. After repetitive use testing, there was no additional functional loss or loss to ROM. The examiner reported that the Veteran was not being examined immediately after repetitive use over time, however, the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Due to pain, lack of endurance, and incoordination the Veteran’s ROM after repetitive use over time was described to be from 0 to 90 degrees for both flexion and extension. Factors that contributed to the Veteran’s right knee disability were noted to include less movement than normal, disturbance of locomotion, interference with sitting, and interference with standing. The Veteran’s muscle strength was rated as five out of five for normal, and he did not have muscle atrophy. There was no ankylosis. The Veteran did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. He underwent joint stability testing, and he was not found to have joint instability. It was reported that the Veteran did not have patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, any other tibial or fibular impairment, or any meniscal conditions. The Veteran underwent arthroscopic surgery on his right knee on three separate occasions, one was dated as unknown, one was in 2009, and one was in 2012. The Veteran was noted to have a scar on his right knee, which he is service-connected for, and measured 0.25 centimeters in length by 0.25 centimeters in width. There was no objective evidence that the scar was painful, unstable, or had a total area equal to or greater than 39 square centimeters. The Veteran did not relay the usage of any assistive devices. Imaging studies were noted to be available, and the Veteran did not have documented arthritis or any other significant diagnostic findings. The Veteran underwent an examination in July 2010, at which he reported suffering from symptoms in relation to his right knee that included pain, weakness, giving way, stiffness, locking, and lack of endurance. He noted that his symptoms had gotten worse since the onset of his right knee disability. The Veteran reported having flare-ups with his right knee, where his knee gets very hot from going up stairs, or from walking or standing for a long time. He noted the frequency of the flare-ups as occurring four to five days, and having a duration of three to four hours. He reported the use of a cane for stability. The Veteran’s ROM was from 0 to 130 degrees for both flexion and extension. The Veteran performed repetitive ROM, and after the fifth repetition, his ROM was from 0 to 95 degrees for both flexion and extension. The examiner noted there to be objective evidence on examination of painful motion, instability, tenderness, abnormal movement, and guarding of movement. The Veteran was not reported to have patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, any other tibial or fibular impairment, or any meniscal conditions. It was noted that the Veteran had undergone arthroscopic surgery on his right knee due to damaged cartilage in October 2008. Imaging studies were available, and the Veteran did not have documented arthritis or any other significant diagnostic findings. A review of the Veteran’s VA treatment records reflects findings in line with those in the above VA examinations. In general, the record shows that the Veteran has undergone physical therapy in relation to his right knee pain on multiple occasions. He has reported occasional instability, for example, in June 2011 he relayed that his right knee gave out. In August 2011, he reported his right knee almost gave out while going up the stairs. In August 2012 he noted instability of his knee, and in December 2013, he relayed feeling some instability in his knees when he first stands up. In November 2014, the Veteran also reported that he had hurt his left shoulder when he fell because his knee gave out. Bilateral heel lifts were ordered for the Veteran to help with his knee pain in September 2016. Based upon the foregoing, the Board finds that a rating in excess of 10 percent for the Veteran’s right knee disability in relation to limitation of motion is not warranted. Over the entire period on appeal, the Veteran’s ROM has not equated to a compensable ROM. He has been provided with the 10 percent evaluation for flexion based upon evidence of painful motion, rather than actually demonstrated functional limitation of motion. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran’s right knee disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Nevertheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). It is the Veteran’s painful motion with functional loss which already provides the Veteran with his 10 percent rating for his right knee disability. Moreover, while repetitive motion testing was conducted at the various VA examinations, limitation of motion, even after repetitive motion, failed to reach a compensable level. Rather, as outlined above, even factoring limitation from pain, lack of endurance, repetitive motion the Veteran’s motion was limited at most to 90 degrees of flexion. As such, it has not been shown that functional limitation so limited range of motion as to warrant an increased rating. Additionally, a rating in excess of 10 percent for the Veteran’s right knee disability in relation to instability is not warranted. Over the entire period on appeal, the Veteran has only been found to have instability at the July 2010 VA examination. At both the June 2016 and the November 2017 VA examinations the Veteran was not reported to have a history of instability, and he was not found to have instability after joint stability testing. However, the record does reflect that the Veteran has reported having occasional instability, which has been evidenced by the report of an occasional fall, as well as the Veteran’s reports of the utilization of assistive devices such as orthotics, a brace, and a cane. As such, the Veteran’s current rating of 10 percent for slight instability is appropriate, and a greater rating of 20 percent for moderate instability is not warranted. The Board has considered all other potentially applicable DCs, to include whether a separate rating under DC 5261 for limitation of extension is warranted, however, the Veteran has not exhibited a compensable ROM for extension, nor has pain or functional limitations been shown to be so significant as to functionally limit the extension in the Veteran’s right knee to a compensable level. Accordingly, for the entire period on appeal, a rating in excess of 10 percent for a right knee disability in relation to limitation of motion, and a rating in excess of 10 percent for a right knee disability in relation to instability, is denied. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.