Citation Nr: 21004652 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-00 530 DATE: January 27, 2021 ORDER Entitlement to a 10 percent rating for service-connected left knee patellofemoral pain syndrome is granted. Entitlement to a 10 percent rating for service-connected right knee patellofemoral pain syndrome is granted. Entitlement to a rating in excess of 10 percent for service-connected left knee patellofemoral pain syndrome is remanded. Entitlement to a rating in excess of 10 percent for service-connected right knee patellofemoral pain syndrome is remanded. FINDINGS OF FACT 1. For the period at issue, the left knee patellofemoral pain syndrome was manifested at least by slight recurrent subluxation or lateral instability. 2. For the period at issue, the right knee patellofemoral pain syndrome was manifested at least by slight recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for a 10 percent evaluation for left knee patellofemoral pain syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5257. 2. The criteria for a 10 percent evaluation for right knee patellofemoral pain syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 through December 1980, March 1987 through July 1992, October 2003 through February 2005 and September 2005 through September 2014. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran submitted a waiver of agency of original jurisdiction (AOJ) consideration of new evidence. The Veteran was afforded a videoconference hearing before the undersigned in September 2020. Increased Rating 1. Left knee patellofemoral pain syndrome. 2. Right knee patellofemoral pain syndrome. The Veteran is seeking higher disability ratings for his service-connected left and right knee disabilities. Legal Principles Disability ratings are determined by comparing a veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson, 12 Vet. App. 119 (1999); Hart, 21 Vet. App. 505 (2007). The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 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). Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257 covers “other impairment of the knee,” and an assignment of a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. The terms “mild,” “moderate,” “moderately severe” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence 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. Where the schedule does not provide for a 0 percent rating, such an evaluation will be assigned when the requirements for a compensable evaluation have not been met. 38 C.F.R. § 4.31. Factual Background The Veteran contends that he suffers from bilateral patella femoral syndrome currently rated noncompensably disabling in both knees. He asserts that he has constant throbbing pain in both knees which limits his ability to climb stairs, walk for any distance, or drive in an automobile for a limited period of time. The Veteran reports edema and crepitus in his knees. He asserts that his bilateral knee disorder limits his ability to ride in an automobile for more than short distances and that it may have an impact on the venue for his employability. At the Board hearing, the Veteran testified that he had pain in his knees since before his discharge from service and that it had worsened over the years. He testified that had received injections in his knees due to flareups of pain and that would alleviate the pain but only three to four months at a time. The Veteran testified that since his last VA examination in April 2015, his knee disabilities had worsened in severity as it was unbearably painful to sit for prolonged periods of time. At a May 1993 private treatment examination, the examiner observed the Veteran’s reflexes at 2+ at the right knee and 1+ in the left knee. At a July 2012 emergency visit, the treating examiner observed no injuries to the Veteran’s knees. During an April 2015 VA examination, the examiner diagnosed the Veteran with bilateral patellofemoral pain syndrome. At the examination, the Veteran reported aching in both knees during long car rides and cold and damp weather as well as increased pain with kneeling, squatting and descending stairs. The examiner found normal initial range of motion in the left and right knees with flexion and extension from 140 to 0 degrees and no pain upon examination. After repetitive use, the examiner observed no functional loss in range of motion in either knee after three repetitions but found that pain significantly limited the Veteran’s functional ability with repeated use over time. The examiner further observed normal muscle strength in both knees with 5/5 strength and normal joint stability. The examiner determined that the Veteran’s knee pain was attributable to his arthritis with non-incapacitation exacerbation at least twice per year. At a June 2015 VA examination, the Veteran reported chronic bilateral knee pain which worsened when walking down stairs. The examiner diagnosed the Veteran with knee pain and recommended X-rays to check for chondromalacia patellae of the knees. July 2015 VA X-ray studies revealed the presence of mild bilateral medial knee joint space narrowing and minimal osteophytes of the tibial plateau and femoral condyle with no evidence of acute fracture or dislocation. At an October 2017 private treatment examination, the Veteran presented with left knee pain. The examiner treated the Veteran and prescribed medication to alleviate his symptoms. At a follow up appointment, a week later, the Veteran again presented with left knee pain and the examiner diagnosed the Veteran with chondromalacia patellae of the left knee. The examiner also administered an injection of medication used to treat knee pain. In November 2017, the Veteran returned to the treating examiner and received another injection of knee pain medication. Analysis The Board notes the Veteran was initially rated under Diagnostic Code 5257 as noncompensable effective October 1, 2014. Upon careful review of the evidence, to include the hearing testimony, the Board finds that a schedular rating of 10 percent under DC 5257 is warranted for each service-connected knee disorder from October 1, 2014 to September 21, 2020. The Board finds the April 2015 and June 2015 examination reports, as well as the July 2015 X-ray studies probative because the records indicate a worsening of bilateral knee pain with continued use. The Board finds the April 2015 examination report most probative because the examiner reviewed the Veteran’s record and provided an assessment of the functional impact of the Veteran’s bilateral knee disabilities. The Board also finds the Veteran credible and competent and his reports favorable to this decision, specifically his reports of bilateral knee pain on use with prolonged sitting with increased severity of pain correlated to length of use. The Veteran also testified to these facts at the July 2020 hearing and this testimony is supported by the record. The Board finds the Veteran is entitled to a 10 percent disability rating, but no higher, for left and right knee instability effective October 1, 2014 through September 21, 2020. A higher rating is not appropriate because the objective testing for left and right knee instability performed in the VA examination did not demonstrate more than slight instability in either knee, or any limitation of motion in either knee. Although the Veteran evidenced pain with motion testing and reported edema, even after repeated motion testing, he exhibited full extension and flexion in the knees. He demonstrated full strength in the knees, and no incoordination. As there is no compensable loss of motion in either knee, neither an increased rating under Diagnostic Codes 5260 or 5261 nor a separate compensable rating under those codes in warranted. Accordingly, the evidence does not more nearly approximate moderate recurrent subluxation or instability. 3. Entitlement to a compensable rating in excess of 10 percent for left knee patellofemoral pain syndrome claimed as bilateral knees since September 21, 2020 is remanded. 4. Entitlement to a compensable rating in excess of 10 percent for right knee patellofemoral pain syndrome claimed as bilateral knees since September 21, 2020 is remanded. The Veteran last underwent a VA examination of his left and right knees in July 2015. Since that time the Veteran maintains that his knee disorders have worsened in severity. The Veteran should be provided another examination to determine the current severity of the bilateral knee disability. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an appropriate examiner to assess the current severity of his service-connected bilateral knee disabilities. All indicated studies, including range of motion studies, should be conducted, and the findings reported in detail. The studies should include active motion, passive motion, weight-bearing motion, and non-weight-bearing motion, in addition to the results following repetitive motion testing. The electronic claims file should be made available for review in connection with the examination. The rationale for any opinion offered should be provided. 2. Then, readjudicate the issues of entitlement to greater ratings for a bilateral knee disability from September 22, 2020 onward. If the decision is averse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hamilton, 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.