Citation Nr: 21062087 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-18 330 DATE: October 6, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for right knee patellofemoral syndrome is denied. Entitlement to an initial evaluation in excess of 10 percent for left ankle synovitis is denied. FINDINGS OF FACT 1. At all times relevant to the decision right knee patellofemoral syndrome is manifest by painful motion and objective evidence of arthritis, without flexion limited to 30 degrees or less. Extension is not limited to 10 degrees. 2. At all times relevant to the decision, left ankle synovitis is manifested by moderate limited ankle motion; neither marked limitation of motion nor ankylosis was demonstrated or approximated. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent have not been met at any time for right knee patellofemoral syndrome. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5099-5260. 2. The criteria for a rating in excess of 10 percent have not been met at any time for left ankle synovitis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1987 to June 2011. These matters come to the Board on appeal from an August 2012 Regional Office (RO) rating decision. The matters were previously remanded by the Board for further development in October 2018 and April 2021. In a July 2021 rating decision, the RO granted a separate noncompensable rating for limitation of extension, right knee. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Under 38 C.F.R. § 4.14, the evaluation of the "same disability" is to be avoided. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). On the initial 2018 remand, current VA examinations were obtained because it was determined that the current examination record was not compliant with requirements of 38 C.F.R. § 4.59, or related cases of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), with regard to joint testing and the assessment of functional loss during flare-ups. The examinations were conducted in March 2019 and again in October 2020. Addenda were sought in April 2021 so that a VA examiner could use information elicited from the Veteran to attempt to determine the impact of repetitive use over time and flare-ups on the Veteran's knee and ankle disabilities, consistent with controlling law regarding joint testing and the assessment of functional loss during flare-ups. 1. Entitlement to an initial evaluation in excess of 10 percent for right knee patellofemoral syndrome is denied. Service connection and a 10 percent rating were granted for right knee patellofemoral syndrome in an August 2012 rating decision. The disability is rated under DCs 5299-5260 for an unlisted rating which is based on limited flexion. Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Diagnostic Code 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. Under DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. DC 5259 provides a 10 percent rating for removal of semilunar cartilage, symptomatic. The 10 percent rating is assigned consistent with 38 C.F.R. § 4.59, providing for a compensable rating for painful motion (here flexion) that does not meet the criteria for a minimum rating based on limitation of motion under DCs 5260 or 5261. The current evaluation contemplates pain on motion and would be consistent with limitation of flexion to 45 degrees. To warrant a higher evaluation, the disorder must approximate the functional equivalent of limitation of flexion to 30 degrees. 38 C.F.R. § 4.7. Separate evaluations for the knee may be assigned for compensable limitation of extension, instability, subluxation or meniscus impairment. As discussed below, the preponderance of the evidence is against a higher rating for the right knee patellofemoral syndrome. Parenthetically, with regard to the separate rating for the right knee limited extension under DC 5261, we note that there is no evidence suggesting that the extension is limited, either functionally or otherwise, to 10 degrees or greater, which is the criteria for a compensable rating based on limited extension. Thus, we find no basis to award a compensable rating for that aspect of the right knee disability. The right knee patellofemoral syndrome is manifested by range of motion with flexion to not less than 90 degrees and extension to 5 degrees, even considering painful motion, flare ups or estimated limited use after repetitive use, as documented in the March 2019 and October 2020 VA examination report and June 2021 addendum. The diagnosis is now right knee Chondromalacia, right meniscal tear. Clearly, this does not meet the criteria for a higher rating under DC 5260, limitation of leg flexion. There is also no compensable limitation of extension, no instability and no recurrent subluxation or lateral instability. Nor was there ankylosis or any suggestion in the record of the functional equivalent of ankylosis as discussed in Chavis v. McDonough, No. 18-2928, slip op. (U.S. Vet. App. Apr. 16, 2021). He retains functional movement as demonstrated on the examinations. To the extent he asserts no motion, this is inconsistent with record and is not credible. With regard to meniscus impairment, there is a history of right meniscal tear without frequent episodes of joint locking or pain. While the Veteran reported effusion with two episodes of removal of synovial fluid since 2015, the examiner did not classify this as frequent episodes of joint effusion in either the 2019 or 2020 examination. The resulting pain and limited motion have been considered under DC 5260 to support a 10 percent rating, and to afford a 10 percent rating under DC 5259 or 5258 for some of these symptoms would violate the rule against pyramiding discussed above. See 38 C.F.R. § 4.14. Consistent with DeLuca, the Board has considered the Veteran's functional impairment in assessing limitation of motion in this claim, considering flare-ups and painful motion, weakness, premature or excess fatigability, and incoordination, but they do not result in additional disability beyond that assigned in this claim. We have considered the report of constant pain with swelling and more pain 4 to 5 times per week, inhibiting his ability to walk or stand or care for his young children. We note his report of Motrin 800 mg twice a day and Flector patch 4-5 times a week. He reports difficulty standing after sitting for prolonged periods. There was evidence of pain on passive range of motion testing, and on non-weight bearing. The examiner in 2020 estimated that the functional impact on his current job of Civil Service/Logistic Manager was up to 1 work week lost in past 12 months. It was noted that his job requires a lot of moving and stocking. This condition causes pain that makes difficult to perform his job. He has difficulty with prolonged sitting and standing and pain with walking. In the June 2021 addendum for the right knee, the examiner stated: The veteran's initial ROM on the DBQ was 0 to 110°. There was no further loss on observed repetitive use. Flares were noted and described as occurring 4 to 5 times per week, of moderate intensity, lasting approximately 2 to 4 hours. The result with time, medication and rest. It is likely the veteran limited use further after repetitive use, to avoid pain. A reasonable estimate would be 0 to 5° for flexion, with no probable loss on extension. With flares, a modest loss of 5 to 10° for flexion would be anticipated, after which the veteran would be expected to avoid further stress on the knee until resolution of the flare. A small loss up to 5° for extension might also be anticipated during flare due to pain. We find this does not demonstrate functional limitation higher than the already assigned rating. Rather these are found by the Board to be consistent with and accurately compensated by his rating which considers pain. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, we find that the observations of skilled examiner, specifically those in the June 2021 addendum, are far more probative and more credible as to the degree of disability than the lay evidence, to the extent that he argues there is a higher level of impairment. We note that the treatment records are consistent with this assessment. The rating criteria for musculoskeletal disorders, to include some aspects of knee disorders, under 38 C.F.R. § 4.71a were amended, effective February 7, 2021 Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453-69 (November 30, 2020) (to be codified at 38 C.F.R. § 4.71a.) These changes do not result in any higher rating for this knee disability. Rather, the changes, in relevant part, do discuss recurrent subluxation and lateral instability and patellar instability, which are absent in the Veteran's case according to the most recent VA examination. The manifestations present and discussed in the Veteran's case do not support higher or additional ratings under any criteria. There remains no basis for an increased rating as established by the most probative evidence, the 2017 VA examination. The preponderance of the evidence is against the claim. 2. Entitlement to an initial evaluation in excess of 10 percent for left ankle synovitis is denied. Service connection and a 10 percent rating were granted for left ankle synovitis in an August 2012 rating decision. The disability is rated under DCs 5024, 5271 for tenosynovitis with limited motion of the ankle. Limitation of motion under DC 5271 is 10 percent disabling where there is moderate limitation of motion of the ankle, and 20 percent disabling where there is marked limited motion of the ankle. For the reasons that follow, the Board finds that the preponderance of the evidence is against rating in excess of 10 percent for the left ankle. Higher ratings include, under DC 5271, a 20 percent evaluation for marked limitation of motion of the ankle. Under DC 5270, ankylosis of the ankle in plantar flexion, less than 30 degrees, also warrants a 20 percent rating. A 30 percent evaluation is warranted for ankylosis in plantar flexion, between 30 and 40, or in dorsiflexion, between 0 and 10 degrees. 38 C.F.R. § 4.71a. There is no ankylosis shown on any of the examinations or treatment records. He had left ankle synovitis status post-surgical repair in 2013. At the March 2019 examination, he had chronic ankle tenderness, worsened by activity. He takes piroxicam 20 mg daily as needed. He reported left ankle pain and swelling with increased activity of prolonged standing and walking. Range of motion as measured in the initial examination was dorsiflexion to 5 degrees and plantar flexion to 25 degrees with pain noted on examination. Functional impact was not more than one week work time lost in last 12 months because his ankle hurts with prolonged standing and walking. There is objective evidence of pain on passive range of motion testing and in non-weight bearing. At the October 2020 examination, Range of motion as measured in the initial examination was dorsiflexion to 15 degrees and plantar flexion to 35 degrees with pain noted on examination. Repetitive-use testing reduced the dorsiflexion to 10 degrees and plantar flexion was to 25 degrees. The Veteran reported it was painful to bend, stand and walk, and it was hard to do things around the house. Functional impact was up to one week work time lost in last 12 months status post left ankle arthroscopy and plantar fascial ablation, impingement syndrome and left ankle synovitis of the left ankle and left ankle osteoarthritis interferes with walking and standing. His current job as logistics manager requires a lot of standing and walking, and the Veteran has to slow down and take frequent breaks due to pain making it difficult to perform his job's assigned duty. There is objective evidence of pain on passive range of motion testing and in non-weight bearing. The new diagnosis was left ankle osteoarthritis, impingement syndrome, status post left ankle arthroscopy. In the June 2021 addendum for the left ankle, the examiner stated: The initial ROM on the DBQ was 15° for dorsiflexion and 35° for plantar flexion. Flares were denied and there was no loss on observed repetitive use. As no flares were reported, no loss of ROM due to flare would be anticipated. As was no loss on observed repetition, reported symptoms and clinical findings at the time of the exam, a minimal loss would be anticipated on repetitive use of 0 to 5° for dorsiflexion and plantar flexion. VA treatment records reflect he has custom orthotics. The Board finds that the above VA ankle examination reports and treatment records show that the Veteran's left ankle disability fits squarely within the criteria for a 10 percent rating under DC 5271 at all times relevant to the claim. The Veteran's flare-up and limited motion throughout the appeal period are judged to be consistent with moderate limitation of ankle range of motion. The preponderance of the evidence is against finding there is marked limitation of motion or a higher degree of impairment, such as ankylosis, at any time. Nor is there any suggestion in the record of the functional equivalent of ankylosis as discussed in Chavis v. McDonough, No. 18-2928, slip op. (U.S. Vet. App. Apr. 16, 2021). He retains functional movement as demonstrated on the examinations. To the extent he asserts no motion, this is inconsistent with record and is not credible. The Board finds the addendum to be highly probative as to the degree of disability. It is consistent with the treatment record and was made based in part on the Veteran's descriptions of symptoms and his flare-ups. A 10 percent rating and no higher adequately represents functional impairment attributable to the disability. See 38 C.F.R. §§ 4.41, 4.10. To the extent that the Veteran urges that the criteria for a higher rating are met or approximated other than what was awarded herein, his assertions are outweighed by the treatment and examination record which are against this assertion, as discussed above. The criteria for a higher rating are not met or approximated at any time throughout the appeal period when all the evidence is considered. See 38 C.F.R. § 4.7. There is no reasonable doubt regarding the degree of disability. See 38 C.F.R. § 4.3. Parenthetically, we note that there have been changes to the Schedule of Ratings for the Musculoskeletal System effective February 7, 2021, but these changes do not result in any higher rating for the ankle disability. Rather, the changes, in relevant part, clarify that limitation of motion of the ankle under DC 5271 is considered moderate when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and marked when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The manifestations present and discussed in the Veteran's case do not suggest higher or additional ratings under any criteria. The most probative evidence establishes that there is pain on motion and some limited motion. Such evidence supports a 10 percent evaluation and no more. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.