Citation Nr: 21061337 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-17 520 DATE: October 1, 2021 ORDER Entitlement to a rating in excess of 20 percent for right shoulder impingement syndrome is denied. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome is denied. Entitlement to a rating of 10 percent, but no higher, for right knee instability for the entire appeal period is granted. FINDINGS OF FACT 1. Right shoulder impingement syndrome is productive of pain with limitation of motion but not limited to 25 degrees from the side. 2. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran's right knee disability has not manifested as limitation of flexion to 30 degrees, limitation of extension to 15 degrees, dislocated or removed semi-lunar cartilage, or subluxation or instability. 3. Resolving all doubt in the Veteran's favor, the Veteran's right knee instability is manifested as slight, and he has not been prescribed an assistive device by a medical professional. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for right shoulder impingement syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5019-5201. 2. The criteria for entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome have not been met. See 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5260, 5261. 3. For the entire appeal period, the criteria for entitlement to a rating of 10 percent, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2005 to May 2015. This matter came to the Board from an August 2015 rating decision. The matters were previously remanded by the Board in November 2019. Increased Rating 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 DCs identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and 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). Where evidence indicates that the degree of disability increased or decreased during an appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126(1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, 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 (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9 (b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9 (b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904 (d)(2), the Board will proceed to adjudicate the Veteran's claim. 1. Entitlement to a rating in excess of 20 percent for right shoulder impingement syndrome As discussed, the rating criteria for evaluating certain musculoskeletal disabilities under 38 C.F.R. § 4.71a, including DC 5201, were amended during the pendency of the appeal effective February 7, 2021. Prior to the regulatory change, DC 5201 assigned a 20 percent rating for limitation of motion of the major arm at shoulder level. To warrant a 30 percent rating, the evidence needed to demonstrate limitation of motion of the major arm midway between side and shoulder level. 38 C.F.R. § 4.71a, DC 5201 (2020). The regulatory change amended DC 5201 only to the extent that it defined "shoulder level" as flexion and/or abduction limited to 90 degrees, and "midway between the side and shoulder level" as flexion and/or abduction limited to 45 degrees. 85 Fed. Reg. 76453 (Nov. 30, 2020). The Veteran is right-hand dominant, and the evaluations above are assigned based on the major extremity. Regulations define the normal range of motion for the shoulder as forward flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. The Veteran underwent a VA examination in July 2015 at which he reported decreased range of motion (ROM) and pain in the right shoulder. The Veteran reported flare-ups that manifested as difficulty reaching overhead and pulling or using a ratchet at work. No muscle atrophy, ankylosis, or instability was noted. Muscle strength was normal. The Veteran had a positive Hawkins impingement test. The Veteran's ROM measured flexion to 110 degrees, abduction to 100 degrees, external rotation to 60 degrees, and internal rotation to 50 degrees. Pain was noted on all motion and to result in functional loss. In that regard, while it was found that flare-up and repeated motion would result in functional impairment, which manifest as difficulty with overhead reaching and lifting, the examiner provided no estimation/description of how that impairment could be quantified. VA records show that the Veteran received ongoing care for his right shoulder disabilities. Of note, records from 2016 document that the Veteran physical therapy (PT) on his right shoulder. Testing performed in July 2016 showed flexion to 119 degrees, abduction to 100 degrees, external rotation to 90 degrees, and internal rotation to 10 degrees. Subsequent PT records indicate that he reported improvement and reduced pain. PT testing in August 2016 showed improvement in all ranges of motion. The records also show that the Veteran worked at Navy Seabee base as a weapons instructor and for Dominos pizza. He said he tended to experience pain with his work activities at Dominos. At the December 2019 VA examination the Veteran reported difficulty lifting right arm above the right shoulder. He denied flare-ups. The Veteran's flexion and abduction were the same as the previous examination and his external rotation improved to 90 degrees and internal rotation improved to 60 degrees. Pain was noted on flexion, abduction, and internal rotation, but did not contribute to functional loss. No muscle atrophy, ankylosis, rotator cuff condition, or instability was noted. Treatment records do not reflect symptomatology worse than on examination. The evidence indicates findings of arm motion limited, at worst, at shoulder level with right shoulder flexion to 100 degrees. The evaluation of 20 percent more closely approximates the Veteran's symptomatology than a rating of 30 percent. The Veteran's ROM would have needed to have been limited to between side and shoulder level, which is simply not supported by the evidence of record. The sole indication the Veteran's ROM is limited as such is a statement from the Veteran's representative; however, no treatment records, nor examination results indicate this level of limitation. Accordingly, a rating more than 20 percent disabling is not warranted. The Board has considered the Veteran's reports of pain and functional loss in his right shoulder. The fact that he may have pain in all ROM testing does not warranted a higher evaluation. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (discounting the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially absurd results). The examinations of record considered his complaints of pain and functional loss when measuring and assessing his ROM. Thus, even after considering his complaints of pain and pain on motion, the evidence shows limitation of motion of the right arm more closely approximates the evaluation currently assigned rather than the higher evaluation sought by the Veteran. The next higher schedular disability rating is not warranted. See 38 C.F.R. § 4.71a. The Court has established that flare-ups must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given to the Veteran's report at his 2015 examination of experiencing flare-ups resulting in increased pain. Such would not warrant a higher evaluation. The reported flare-ups are not shown to additionally limit function in a quantifiable way and are not of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. The contemporaneous treatment records contain little, if any, findings pertaining to flare-ups much less information regarding the Veteran's functional ability during a flare-up or after repeated use over time. The records from 2016 actually shown an overall improvement. There were also no reports of flare-ups when the Veteran was examined in 2019. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, the single report of exacerbation or flare-ups in 2015 is not quantifiable and was not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1 and the rule regarding stabilization of ratings. The Board has considered whether higher ratings could be assigned under alternate DCs. See Butts v. Brown, 5 Vet. App. 532 (1993); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in DC must be specifically explained). The record on appeal does not support evaluating the Veteran's right shoulder disorder under alternate DCs. The VA examinations did not identify ankylosis in the right shoulder; therefore, DC 5200 is not applicable. DC 5202 is not applicable because the record is silent as to any impairment of the Veteran's humerus, to include flail shoulder, false flail shoulder, fibrous union, or recurrent shoulder dislocations. DC 5203 is also not applicable because the record does not document dislocation, nonunion, or malunion of the clavicle and scapula. Lastly, DC 5051, which applies to prosthetic shoulder replacements, is not applicable here because the Veteran has not had shoulder replacement surgery. A rating more than 20 percent for a right shoulder disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C. § 5107. 2. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome As to the relevant rating criteria, DC 5010 was amended; however, DC 5260 was not. In this regard, prior to the regulatory change, DC 5010 pertains to traumatic arthritis and is evaluated as degenerative arthritis. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate DC, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. In the absence of limitation of motion, DC 5003 provides for a 10 percent rating with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating under DC 5003 requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. For the purpose of rating disability from arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45. As of February 7, 2021, under the amended criteria, DC 5010 still pertains to post-traumatic arthritis, but such is now rated as limitation of motion, dislocation, or other specified instability under the affected joint rather than degenerative arthritis. If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Thus, in practice, both versions of DC 5010 ultimately provide that arthritis of an affected joint will be rated based on limitation of motion. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, DCs 5260 and 5261. DC 5260 provides for a zero percent rating where flexion of the leg is limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. DC 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where extension is limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Where extension is limited to 45 degrees a 50 percent rating may be assigned. Prior to the regulatory change, 38 C.F.R. § 4.71a , DC 5257, provided for a 10 percent rating for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Effective February 7, 2021, the new criteria under DC 5257 specify that the code governs recurrent subluxation or instability (due to a knee sprain or ligament tear) and patellar instability. For recurrent subluxation or instability, a 10 percent evaluation is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent evaluation is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. See 38 C.F.R. § 4.71, DC 5257 (2021). For patellar instability, a 10 percent evaluation is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability, without a prescription for an assistive device or bracing for ambulation. A 20 percent rating is assigned for a patellar condition after surgical repair with a prescription for either a brace, cane, or walker. A 30 percent rating is assigned for the same with a prescription for both a brace and a cane or walker. Id. The Veteran attended a VA examination in July 2015 at which he reported his right knee will pop and occasionally give way. He also reported flare-ups that occur daily, last about one hour, are mild in severity, and cause difficulty going up and down stairs and using a lawn mower. The Veteran's ROM was abnormal bilaterally. His right knee ROM was limited flexion to 125 degrees and normal extension. No additional loss of motion was noted after observed repetitive use. The examiner indicated that the Veteran's description of functional loss after repeated use over time or during a flare-up would be consistent with the examination results. There was no muscle atrophy, ankylosis, or instability by history or on stability testing, was noted. Muscle strength testing was normal. At the December 2019 VA examination, the Veteran reported pain in the right knee that occasionally is shooting pain from patella up anterior thigh, then the right knee buckles. The Veteran reported prolonged standing, sitting, and climbing. ROM of the right knee was abnormal as to flexion, which was limited to 120 degrees. Extension was normal. No additional loss of motion was indicated after observed repetitive use or after repeated use over time. Muscle strength testing was normal. No muscle atrophy, ankylosis, or instability, by history or on stability testing, was noted. Contemporaneous VA records contain little findings with respect to the right knee. The records generally note the Veteran's report of periodic pain and his desire reduce that pain and be more active. A note from September 2017 indicated that the right knee degenerative arthritis was controlled without medication. An August 2018 note indicated that he was prescribed Celebrex. Based on the evidence of record, the Veteran is not entitled to a rating in excess of 10 percent for his right knee limitation of flexion. He has not had flexion limited to 30 degrees, at worst, his limitation of flexion is to 120 degrees. Even considering limitation from pain and passive use, and during a flare-up, this does not more nearly approximate limitation required for an increased rating. The Board has considered the Veteran's reports of pain and function loss in his right knee. The fact that he may have had pain in all range of motion testing does not warrant a higher evaluation. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (discounting the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially absurd results). The examinations of record considered his complaints of pain and functional loss when measuring and assessing his ROM. Thus, even after considering his complaints of pain and pain on motion, the evidence shows limitation of motion of the right knee more closely approximates the evaluation currently assigned rather than the higher evaluation sought by the Veteran. The next higher schedular disability rating is not warranted. See 38 C.F.R. § 4.71a. The Court has established that flare-ups must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given to the Veteran's report at his 2015 examination of experiencing flare-ups resulting in increased pain. Such would not warrant a higher evaluation. The reported flare-ups are not shown to additionally limit function in a quantifiable way and are not of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. The contemporaneous treatment records contain little, if any, findings pertaining to flare-ups much less information regarding the Veteran's functional ability during a flare-up or after repeated use over time. There were also no reports of flare-ups when the Veteran was examined in 2019. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, the single report of exacerbation or flare-ups in 2015 is not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1 and the rule regarding stabilization of ratings. The Board has also considered other relevant DCs. However, there is no evidence at any time throughout the appeals period showing ankylosis, limitation of extension, dislocation or removal of the semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum to warrant any separate compensable ratings under DCs 5256, 5258, 5259, 5261, 5262, or 5263. 38 C.F.R. § 4.71a, DCs 5256-5259, 5262-5263. As to DC 5257, objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Veteran reports that his knee gives way sometime and that his knee buckles on him sometimes. Medical evidence of record shows the Veteran's right knee is stable. The July 2015 and December 2019 examinations uniformly show no history of recurrent subluxation or lateral instability. On physical examination in all examinations, joint stability for the right knee has consistently been normal, and ligament laxity testing has been negative for the entire period on appeal. VA treatment records document complaints of knee pain; however, they do not document any complaints of knee laxity or objective medical evidence of recurrent subluxation or lateral instability. There is a note indicating that the use of a brace was suggested. However, there is no indication that a brace was prescribed or that the suggestion was to treat knee instability. In light of the foregoing, and considering the Veteran's consistent reports of knee buckling and instability, the Board affords the Veteran the benefit of the doubt and finds a 10 percent rating for instability of the right knee is warranted. A higher rating of 20 percent is not warranted as there is no evidence to support a finding the Veteran's right knee instability was moderate in severity. Stability testing was consistently normal, treatment records do not contain complaints of instability, and the Veteran's reports of instability do not paint a picture of frequent or severe impairment caused by the instability. Such tends to indicate the Veteran's disability is more accurately described by the 10 percent rating. Further, under the new DC 5257 regulation, a higher rating is not warranted as the Veteran has not been prescribed an assistive device by a medical provider. While the use of a brace was discussed with the Veteran, there is no indication that he uses a brace or that it was prescribed. The VA examinations indicate the Veteran is not using assistive devices. As such a higher rating under either the new or old regulations is not warranted for instability of the right knee. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.