Citation Nr: 21001302 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-39 914 DATE: January 7, 2021 ORDER A rating in excess of 10 percent for right knee patellofemoral pain syndrome is denied. FINDINGS OF FACT 1. The Veteran served on active duty from July 1984 to February 1987. 2. Throughout the entire period on appeal, the Veteran has had subjective complaints of right knee pain and instability; objective findings have shown no knee instability and X-ray evidence of involvement of no more than two or more major joints or to or more minor joint groups. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40. 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In April 2019, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In April 2019, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Throughout the period on appeal, the Veteran has been assigned a 10 percent rating for his right knee disorder. Importantly, the evidence seems to be in conflict as to whether degenerative arthritis has been shown in the right knee. In this regard, January 2014 and May 2017 VA imaging reveals mild tricompartmental osteoarthritis with slight progression. However, a private November 2019 radiology consultation revealed normal joint spaces, no abnormal calcification, and the impression was a normal right knee. Nonetheless, because arthritis has been noted by VA imaging, the Board will assume that there are degenerative changes present. As such, these disabilities have been evaluated under DCs 5010 and 5257, respectively. Nonetheless, all relevant diagnostic codes will be considered. In order to warrant a higher rating, the medical evidence must show: • arthritis with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations (20% under DC 5010); • ankylosis of the knee with a favorable angle in full extension or in slight flexion between 0 and 10 degrees (30% under DC 5256); • moderate recurrent subluxation or lateral instability (20% under DC 5257); • dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint (20% under DC 5258); • flexion of the knee limited to 30 degrees (20% under DC 5260), or 15 degrees (30% under DC 5260); • extension of the knee limited to 15 degrees (20% under DC 5261); to 20 degrees (30% under DC 5261); extension of the knee limited to 30 degrees (40% under DC 5261); extension of the knee limited to 45 degrees (50% under DC 5261); • impairment of the tibia or fibula with a moderate knee disability (20% under DC 5262). Turning to the evidence, at a June 2014 VA examination, the Veteran complained of pain in his anterior right knee, which was worse with prolonged walking, and ascending of the stairs. He stated that he had received some physical therapy as treatment, but denied flare-ups. The examiner found that arthritis was noted, but only in the right knee joint. Range of motion testing showed flexion to 135 degrees, without evidence of painful motion, and extension was normal to 0 degrees. There was no evidence of ankylosis, recurrent subluxation, tibial or fibular impairment, meniscal or cartilage conditions, and all stability tests were within normal limits without instability shown. At an October 2015 VA examination, the Veteran reported continued pain in the front of his right knee, with added pain on the right lateral knee region. He reported that he began using an elastic brace almost every day, and that he could no longer tolerate physical therapy. Instead, he reported taking Aleve intermittently to reduce the pain. He denied flare-ups once more. The examiner found that arthritis was noted, but only in the right knee joint. Range of motion testing showed flexion to 130 degrees, without evidence of painful motion, and extension was normal to 0 degrees. Once more, there was no ankylosis, no history of subluxation, lateral instability, or effusion. There was no tibial or fibular impairment, meniscal or semilunar cartilage conditions, and all stability tests were within normal limits without instability shown. The examiner noted functional impairment in the Veteran’s ability to complete only limited squats and other activities requiring deep knee bending. At a November 2019 VA examination, the Veteran was diagnosed with right patellofemoral pain syndrome and chondromalacia, with a possible meniscal tear. He reported chronic right knee pain with intermittent swelling after prolonged use, as well as clicking with bending and inability to kneel, squat or stand for long periods of time. The Veteran reported that he was having decreased range of motion which was progressively worsening, as well as flare-ups which required elevating and icing the knee. Range of motion testing showed flexion to 120 degrees, and extension was to 5 degrees. Pain was noted on examination including on rest. Functional loss was noted in diminished ability to squat, kneel, or climb stairs. The Veteran was able to perform repetitive use testing without additional loss of range of motion. The examiner once more found that previous imaging revealed minimal arthritis, but only to the tibia. However, later, the examiner noted that there was no arthritis found. Thus, as the prior VA examiners have found arthritic changes, and as aforementioned, the Board will consider arthritis to be present. Nonetheless, it has not been shown to involve two or more major or minor joints, with incapacitating exacerbations. Next, there was no ankylosis of the right knee, subluxation, or lateral instability. While the examiner did find a meniscal condition, presumably based upon the finding of a probable meniscal tear, there was no episodes of locking or effusion noted. In this regard, the examiner found only frequent episodes of pain. In addition, there was no evidence of any tibial or fibular conditions. Therefore, the medical evidence does not support a higher rating. The Veteran’s private and VA medical record were also reviewed. While treatment for his right knee pain was noted intermittently, the medical evidence does not reflect symptoms more severe than were outlined in the VA examinations. A VA treatment note as recent as July 2019 revealed that he characterized his knee pain as “on and off.” To that end, the medical evidence does not show arthritis with involvement of two or more minor or major joints, ankylosis, subluxation or lateral instability, or impairment of the tibia or fibular. Additionally, range of motion testing has, at worst, revealed flexion to 120 degrees, and extension to 5 degrees. This evidence does not support a higher rating. With regard to an increased rating for any dislocated cartilage or meniscal conditions, the Board notes that a “probable” meniscal condition was noted only by the November 2019 VA examiner. No such meniscal condition was seen in the Veteran’s treatment notes. Additionally, even if a meniscal condition was present, a rating in excess of 10 percent is not warranted as the evidence does not show frequent episodes of locking, pain and effusion into the joint. In this regard, the examiner found frequent episodes of pain but no evidence of locking or effusion. Thus, the medical evidence does not support a higher rating on this basis. The Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s right knee disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED