Citation Nr: 21063291 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-02 081 DATE: October 13, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right knee disability based on limitation of motion prior to August 13, 2021, and a rating higher than 30 percent thereafter, is denied. Entitlement to a rating in excess of 10 percent for a left knee disability based on limitation of motion prior to August 13, 2021, and a rating higher than 30 percent thereafter, is denied. Entitlement to a rating of 10 percent, but no higher, for right knee instability/subluxation is granted. Entitlement to a rating of 10 percent, but no higher, for right knee instability/subluxation is granted. FINDINGS OF FACT 1. Prior to August 13, 2021, right knee flexion was to 130 degrees and extension was to 0 degrees; from August 13, 2021, right knee flexion was to 120 degrees and extension was to 20 degrees; with slight recurrent subluxation/instability. 2. Prior to August 13, 2021, left knee flexion was to 130 degrees and extension was to 0 degrees; from August 13, 2021, left knee flexion was to 120 degrees and extension was to 20 degrees; with slight recurrent subluxation/instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee disability based on limitation of motion prior to August 13, 2021, and a rating higher than 30 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. 2. The criteria for a rating in excess of 10 percent for a left knee disability based on limitation of motion prior to August 13, 2021, and a rating higher than 30 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. 3. The criteria for a disability rating of 10 percent, but no higher, for slight right knee instability/subluxation have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 4. The criteria for a disability rating of 10 percent, but no higher, for slight left knee instability/subluxation have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 2008 to December 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In March 2021, the Board remanded the appeal for additional development. In a rating decision in August 2021, the Agency of Original Jurisdiction (AOJ) increased the Veteran's disability ratings for the patellofemoral pain syndrome of the right and left knees, to 30 percent effective August 13, 2021, respectively. Because the increased ratings do not represent a grant of the maximum benefits allowable, the issues remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to higher disability ratings for the right knee disability 2. Entitlement to higher disability ratings for the left knee disability Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. 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 v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The rating of a knee problem in Veteran's Law is complicated. Traumatic arthritis shown by x-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent disability rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (traumatic arthritis). Diagnostic Code 5003 states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. §§ 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. §§ 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). The Veteran claims that he is entitled to higher disability ratings for his left and right knee disabilities. The Veteran's service-connected right and left knee disabilities were initially assigned separate 10 percent disability ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260. An August 2021 rating decision assigned increased ratings of 30 percent, bilaterally, under 38 C.F.R. § 4.71a, Diagnostic Code 5261. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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. Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71, Plate II. VA's General Counsel has held that separate ratings may be assigned for disability of the same joint under Diagnostic Codes 5260 (for limitation of flexion) and 5261 (for limitation of extension). VAOGCPREC 9-2004 (September 2004). In contrast, an evaluation under Code 5003 may not be combined with one under Code 5260 or Code 5261; Code 5003 does not specify the plane of limited motion considered, and so evaluation under either of the other limitation of motion Codes forecloses the possibility of multiple evaluations. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14. Prior to the regulatory change, the rating schedule provided for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As of February 7, 2021, under the amended criteria for recurrent subluxation or lateral instability, a 10 percent rating is warranted for 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 (a) 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 (b) 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 rating 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As of February 7, 2021, under the amended criteria for recurrent patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 38 C.F.R. § 4.71a, Diagnostic Code 5257. For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (2). Dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint will be rated a maximum 20 percent disabling. 38 C.F.R. § 4.71a , Diagnostic Code 5258. Removal of the semilunar cartilage, if symptomatic, will be rated a maximum 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The Board has also considered whether separate or increased evaluations are warranted under any other Diagnostic Codes pertaining to knee disabilities that would afford the Veteran higher ratings. Here, there is no evidence of ankylosis of the knee to warrant a rating under Diagnostic Code 5256; there is no evidence of dislocated semilunar cartilage, or removal of the semilunar cartilage under Diagnostic Codes 5258, 5259; no evidence of malunion or nonunion of the tibia and fibula to warrant a rating under Diagnostic Code 5262 for impairment of the tibia, and; no evidence of genu recurvatum to warrant a rating under Diagnostic Code 5263. Hence, the Board will not discuss these Diagnostic Codes any further. On VA examination in March 2016, the Veteran complained of bilateral knee pain. He endorsed flare-ups productive of decreased range of motion secondary to increased pain during flares ups. Bilateral knee flexion was to 140 degrees and extension was to 0 degrees with no objective evidence of pain or additional loss of motion with repetitive movement. There was evidence of pain on weight bearing and crepitus, bilaterally. Strength was 5/5 with no muscle atrophy. The examiner noted that stability testing was not indicated, and there was no history of recurrent patellar subluxation or dislocation. Imagining studies showed mild right and left knee osteoarthritis with slight lateral subluxation of the patella and intact ligaments. The Veteran did not require assistive devices for ambulation. The examiner determined that the Veteran's bilateral knee condition was mild in its severity. The Veteran worked as a customer service representative over the phone, and as a result of bilateral knee pain, at times he called in sick to work. On VA examination in November 2016, the examiner noted a diagnosis of bilateral patellofemoral pain syndrome. The Veteran complained of bilateral knee pain. He endorsed flare-ups productive of pain on lifting, bending, squatting or strength movements, with decreased range of motion. On flare-ups, bilateral knee flexion was to 130 degrees and extension was to 0 degrees with no objective evidence of pain or additional loss of motion with repetitive movement. There was evidence of pain on weight bearing, mild pain on palpation and crepitus, bilaterally. Strength was 5/5 with no muscle atrophy. Bilateral knee stability testing was within normal limits. There was no history of recurrent patellar subluxation or dislocation. The Veteran did not require assistive devices for ambulation. Occupationally, the condition prevented lifting or labor activity. The examiner noted that the Veteran was employed full time as a sawmill machine worker with no limitations. Private treatment records in August 2017, show that the Veteran was seen by a private clinician for bilateral patellofemoral pain syndrome. Examination of both knees showed range of motion, strength and stability within normal limits. The Veteran was referred for physical therapy. In October 2018, the Veteran was seen for right knee pain, instability and buckling. He was treated with anti-inflammatories, knee brace and physical therapy. At a March 2020 Board hearing, the Veteran complained of bilateral knee pain and stiffness. He reported flare-ups productive of limited motion. He stated that his knees would give out, particularly on weight bearing. The Veteran was employed as a fabricator of commercial doors and windows for schools, commercial buildings and residential buildings. Reportedly, his knee symptoms limited his ability to pick up objects, squat, lift, climb stairs or walk more than a mile. On VA examination in August 2021, the Veteran complained of bilateral knee pain. He was treated with physical therapy and braces. He endorsed flare-ups productive of pain and with repeated use over time that negatively impacted his ability to perform occupational tasks, including prolonged walking and squatting. On flare-ups and with repeated use over time, bilateral knee flexion was reduced to 120 degrees and extension was to 20 degrees. There was evidence of pain on weight bearing, active and passive range of motion. There was crepitus, but no tenderness on palpation. Strength was 4/5 with no muscle atrophy. There was no history of recurrent patellar subluxation or dislocation, or instability. The Veteran did not require a prescribed assistive device for ambulation. Occupationally, the condition negatively impacted the Veteran's ability to perform occupational tasks including prolonged periods of walking. The Board notes that Diagnostic Code 5003 cannot serve as the basis for higher ratings for either knee disability, inasmuch as the knee is a single joint. A maximum rating of 10 percent would be assigned for the knee under Diagnostic Code 5003; therefore, a higher rating is not warranted. 38 C.F.R. § 4.71a. Diagnostic Code 5003. Pertaining to limitation of motion, prior to August 13, 2021, the range of motion findings detailed above, did not show limitation so severe as to meet the criteria for the next higher ratting under Diagnostic Codes 5260, 5261. In this regard, prior to August 13, 2021, the Veteran's bilateral knee flexion was shown to be limited to, at worst, 130 degrees and extension to 0 degrees, with no additional loss of motion or function with repetitive movement. While there was some limited motion with pain and findings of degenerative changes of the knee, the evidence did not reflect limitation of motion to a compensable level for the right or left knee disorders under Diagnostic Codes 5260 and 5261, as his range of motion was beyond required flexion limited to 45 degrees and extension limited to 10 degrees, even when considering Deluca factors. 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp v. Shulkin, 29 Vet. App, 26 (2017). Thus, the Board finds that prior to August 13, 2021, the Veteran is not entitled to higher or separate disability ratings for limitation of extension and/or flexion of the right or left knee. Effective August 13, 2021, on flare-ups and with repeated use over time, bilateral knee flexion was to 120 degrees and extension was to 20 degrees. The evidence does not reflect limitation of motion to a compensable level for the right or left knee under Diagnostic Code 5260. Additionally, as his range of motion was beyond required extension limited to 30 degrees, even when considering Deluca factors, higher disability ratings for limitation of motion are not warranted. 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp v. Shulkin, 29 Vet. App, 26 (2017). Thus, the Board finds that effective August 13, 2021, higher or separate ratings for limitation of extension and/or flexion based on limited painful motion, are not warranted for either knee. The Board acknowledges that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia, supra. The Board has also considered the United States Court of Appeals for Veterans' Claims (Court's) holding in Sharp, addressing 38 C.F.R. § 4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." In light of these requirements, the Board has carefully considered the VA examinations of record and whether they complied with Correia and Sharp. The Board notes that while the March 2016 and November 2016, did not substantially conform to those requirements, the August 2021 examination did. Significantly, however, to the extent that the examination findings of record relative to the knees are not completely in compliance with Correia and/or Sharp, the Board finds that remand for additional examination would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Although the Veteran has reported pain associated with his range of motion, the Court has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." See Mitchell, 25 Vet. App. 32. Indeed, the Court found that nothing in its case law supports an appellant's contentions that he should be given the maximum disability ratings under Diagnostic Codes 5260 and 5261 simply because he experienced pain throughout the range of motion of the knee. Id. The VA examiner in March 2016, noted that imagining studies showed slight bilateral subluxation of the patella. Private treatment records in October 2018, reflect complaints of instability and buckling. He was treated with anti-inflammatories, knee braces and physical therapy. At a March 2020 Board hearing, the Veteran testified that his knees would give out, particularly on weight bearing. Although VA examination reports consistently noted no history of recurrent subluxation or lateral instability, after examining the medical evidence, including the Veteran's statements and testimony, the Board finds that knee instability has (it appears) played a role in the right and left knee disorders. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that separate 10 percent disability ratings for slight right and left knee instability under the rating criteria in effect prior to February 7, 2021, are warranted. There is no indication that any instability found to have been present was moderate in severity. Specifically, stability testing consistently revealed no abnormalities and although muscle strength was reduced on VA examination in August 2021, there was no atrophy. Additionally, there is no evidence that the Veteran was prescribed an assistive device for ambulation, to include a brace, cane, crutch or a walker, due to the bilateral knee disability. Accordingly, separate disability ratings of 10 percent, but no higher, for recurrent slight subluxation/instability of the right and left knees are warranted. 38 C.F.R. § 4.71a Diagnostic Code 5257. While the Veteran clearly has problems with his knees (if he did not, there would be no basis for the current compensation level) the Board finds the medical evidence of record to be highly probative as to the current nature, extent, and severity of the Veteran's right and left knee disorders based on the criteria. The medical reports were based on physical examinations and provided sufficient information to allow the Board to apply the schedular criteria. Thus, although the Veteran's competent and credible reports of symptoms have been considered and are probative, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). As such, the objective medical findings and opinions provided by the VA examiners have been accorded greater probative weight and outweigh the Veteran's contentions. For all the foregoing reasons, the Board finds that the preponderance of the evidence is against assignment of any higher and/or separate ratings for the right or left knee disability. See 38 U.S.C. § 5107 (b); Gilbert, supra. (Continued on the next page) Finally, the Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The evidence of record, to include the treatment and examination reports, show that while the Veteran's service connected bilateral knee disability is productive of some impairment, the Veteran remains employed full-time. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.