Citation Nr: 21003609 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 09-44 356 DATE: January 22, 2021 ORDER A rating in excess of 10 percent for right knee patellofemoral syndrome with degenerative changes and limitation of motion, prior to February 12, 2015, and 30 percent thereafter is denied. A rating in excess of 20 percent for instability of the right knee since February 12, 2015 is denied.   FINDINGS OF FACT 1. Prior to February 12, 2015, the Veteran’s right knee disability was manifested by painful motion, extension to zero degrees, flexion to 110 degrees with significant crepitation and no joint effusion. 2. Since February 12, 2015, the Veteran’s right knee disability has been manifested by painful motion, degenerative arthritis, and extension limited to 20 degrees. 3. Since February 12, 2015, the Veteran’s right knee disability has been manifested by no more than moderate instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee disability, prior to February 12, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5260, 5261. 2. The criteria for a rating in excess of 10 percent for right knee disability, since February 12, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5260, 5261. 3. The criteria for a rating in excess of 20 percent for instability of the right knee, since February 12, 2015, has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1990 to March 1992. The case is on appeal from a September 2009 rating decision. In August 2010, and again in May 2015, the Veteran testified at Board hearings. Most recently, in July 2019, the Board denied a rating in excess of 10 percent for right knee instability prior to February 12, 2015. At that time, the Board also remanded the claims remaining on appeal for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. A rating in excess of 10 percent for right knee patellofemoral syndrome with degenerative changes and limitation of motion, prior to February 12, 2015, and 30 percent thereafter. 2. A rating in excess of 20 percent for instability of the right knee since February 12, 2015. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities of the musculoskeletal system are 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). Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, DCs 5260 and 5261. DC 5260 provides for a noncompensable rating for limitation of flexion limited to 60 degrees; a 10 percent rating is warranted for limitation of flexion limited to 45 degrees; a 20 percent rating is warranted for limitation of flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Ratings for limitation of extension of the knee are under 38 C.F.R. § 4.71a, DC 5261. DC 5261 provides for a noncompensable rating for limitation of extension limited to 5 degrees; a 10 percent rating is warranted for limitation of extension limited to 10 degrees; a 20 percent rating is warranted for limitation of extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Normal range of motion of the knee is zero degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. Knee instability is separately rated under DC 5257. A 10 percent rating is warranted for either slight recurrent subluxation or slight lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or moderate lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or severe lateral instability. 38 C.F.R. § 4.71a, DC 5257. The United States Court of Appeals for Veterans Claims has held nothing in DC 5257 provides that objective medical evidence is required or is to be favored over lay evidence. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran contends he is entitled to: a rating evaluation in excess of 10 percent for his right knee patellofemoral syndrome with degenerative changes and limitation of motion, prior to February 12, 2015, and 30 percent thereafter; and a rating evaluation in excess of 20 percent for instability of the right knee since February 12, 2015. Pursuant to the Board’s July 2019 remand, a VA examiner reviewed medical records dating back to the Veteran’s 1994 knee surgery to the present. The VA examiner also performed an in-person examination of the Veteran in November 2019. The VA examiner found consistent range of motion measurements noted from zero to 100 throughout the Veteran’s examinations. The VA examiner noted there was no estimated degree of range of motion lost in flare-ups in these examinations and there is no way to estimate the amount of degrees of range of motion lost due to flare-ups at the time of prior examinations without resulting to mere speculation. Prior to February 12, 2015, the time period for which the Veteran is seeking an increase in excess of 10 percent, the record includes detailed VA examinations of the Veteran’s knee on July 8, 2005, November 26, 2007, October 28, 2008, September 22, 2009, August 13, 2014, and, including February 12, 2015. The contemporaneous examination notes are consistent in documenting Veteran’s right knee flexion at 100 degrees or more in all the exams and extension ranged from no limitation on extension to 10 degrees at the examinations from 2005 to 2014. At the February 12, 2015, the Veteran’s extension was limited to 20 degrees. No additional weakness, fatigability, discoordination, restricted range of motion, or functional impairment was documented in the Veteran’s right knee leading up to the February 12, 2015 examination. During these exams the Veteran reported pain at rest that would increase with walking, squatting, kneeling or climbing. Based on all the evidence of record, the Board finds that an increase for right knee patellofemoral syndrome with degenerative changes and limitation of motion is not factually ascertainable prior to February 12, 2015. The Board notes that the currently assigned 10 percent rating prior to February 12, 2015 compensates, as far as can practicably be determined, the average impairment of earning capacity resulting from the Veteran’s right knee patellofemoral syndrome. The Veteran’s 10 percent rating was assigned in December 2007 and contemplated the Veteran’s painful motion of a major joint, limitation of leg extension to 10 percent, crepitation, and lack of joint effusion or instability. 38 C.F.R. § 4.45. The Board considered the Veteran’s lay statements and the clinical findings in the record. The Board attributes greater probative value to the clinical findings and opinions which do not reflect flexion limited to at least 30 degrees or extension limited to 15 degrees or more. As such, prior to February 12, 2015, a rating in excess of 10 percent for the Veteran’s right knee patellofemoral syndrome is not warranted. Similarly, a rating in excess of 30 percent is not warranted since February 12, 2015. Regarding right knee instability, at a VA examination in October 2015, the Veteran’s posterior instability was normal, but anterior, medial, and lateral instability were all 5 to10 millimeters. In December 2016, a VA examiner reported the Veteran’s joint stability was normal for anterior, posterior, and medial instability and exhibited slight lateral instability. At another VA examination on November 20, 2017 the Veteran’s anterior and posterior instability were normal and there was slight medial instability and greater lateral instability, 5 to 10 millimeters. Most recently the Veteran had a VA examination in November 2019 where the examiner assessed the severity of the instability of the Veteran’s right knee from February 12, 2015 to the November 2019 examination and determined the degree of instability to be slight, occurs to the right lateral knee, and is from zero to 5 millimeters. The VA examiner opined that the instability of the right knee is slight since February 12, 2015 to the date of the examination. During examinations the Veteran reported that his right knee pain and swelling limited his ability to stand, walk, or sit. The Veteran reported relying on a knee brace due to instability and avoiding stairs, uneven surfaces, and cold weather. During the May 2015 hearing, the Veteran testified to his knee popping and sliding out of line, even with the knee brace on. The Veteran also shared his concern that his knee would give out. A higher evaluation of 30 percent is not warranted for impairment of the knee unless the evidence shows severe instability or severe recurrent subluxation, neither of which are noted in Veteran’s examinations. Here, the Board finds that the Veteran’s lay evidence, along with the VA examination reports of record, support that he experienced moderate right knee instability, indicative of a 20 percent rating since February 12, 2015. The Board finds the Veteran has competently and credibly reported ongoing right knee instability. Although the November 2019 VA examiner characterized the right knee instability as slight, medical evidence is not categorically more probative than lay evidence under DC 5257. See English v. Wilkie, 30 Vet. App. 347, 352-54 (2018). (Continued on the next page)   Accordingly, the Board finds that the 20 percent rating under DC 5257 for moderate right knee instability should be continued from February 2015. However, the evidence does not support a rating in excess of 20 percent for right knee instability. In sum, the preponderance of the evidence is against a rating in excess of 10 percent for Veteran’s right knee patellofemoral syndrome with degenerative changes and limitation of motion, prior to February 12, 2015, and in excess of 30 percent thereafter. Additionally, the preponderance of the evidence is against a rating in excess of 20 percent for instability of the right knee since February 12, 2015. As there is no reasonable doubt to be resolved, higher ratings for right knee disability are not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.L. Thomas 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.