Citation Nr: 21063293 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-22 144 DATE: October 13, 2021 ORDER Entitlement to an increased rating for service-connected, limitation of flexion, left knee patellofemoral syndrome, currently evaluated as 10 percent is denied. Entitlement to a separate compensable rating for limitation of extension, left knee patellofemoral syndrome, currently evaluated as 10 percent disabling prior to May 28, 2021, is denied. Entitlement to an increased rating percent for service-connected limitation of extension, left knee patellofemoral syndrome, currently evaluated as 10 percent disabling as of May 28, 2021, is denied. Entitlement to a separate 20 percent rating, for a left knee disability as of March 2, 2016, under for left knee instability is granted. Entitlement to a separate 10 percent rating for a left knee disability as of March 2, 2016, for meniscectomy is granted. FINDING OF FACT 1. The Veteran's left knee patellofemoral syndrome is manifest by flexion greater than 45 degrees. 2. Prior to May 28, 2021, the Veteran's left knee patellofemoral syndrome was not manifest by extension to 10 degrees or greater. 3. From May 28, 2021, the Veteran's left knee patellofemoral syndrome is manifest by extension less than 15 degrees. 4. The Veteran's left knee patellofemoral syndrome is manifest by Veteran's complaints of buckling and giving out when going up and down stairs, as well as needing to constantly use a brace and cane to support his knee. 5. The Veteran's left knee patellofemoral syndrome is manifest by symptomatic removal of semilunar cartilage. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for a service-connected limitation of flexion of the left knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.7a, Diagnostic Code 5260. 2. The criteria for a separate compensable rating based on limitation of extension of the left knee prior to May 28, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5261. 3. The criteria for a rating greater than 10 percent for service-connected limited extension, left knee patellofemoral syndrome, since May 28, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5261. 4. The criteria for entitlement to a separate rating of 20 percent for a left knee disability from March 2, 2016 for recurrent lateral instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 5. The criteria for entitlement to a separate rating of 10 percent for a left knee disability as of March 2, 2016, for meniscectomy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service in the United States Air Force from September 1985 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2019. A transcript of the hearing is of record. After the hearing, in November 2019, the Veteran's claim for a higher rating for service-connect left knee patellofemoral syndrome was remanded for further evidentiary development. In February 2021, the Board remanded the issue of entitlement to a rating greater than 10 percent for service-connected left knee patellofemoral syndrome to ensure substantial compliance with the November 2019 remand directives. Increased Evaluations Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a), 4.1. Rating the same disability under different diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disability is not duplicative of or overlapping with the symptomatology of the other disability. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an increased rating for service-connected limitation of flexion, patellofemoral syndrome of the left knee, currently evaluated as 10 percent disabling. 2. Entitlement to an increase rating for service-connected limitation of extension, left knee patellofemoral syndrome, currently evaluated as 10 percent disabling since May 28, 2021. The Veteran contends that he is entitled to higher ratings because his service connection left knee patellofemoral syndrome has worsened. The Veteran has diagnoses of a left knee post-operative meniscectomy with degenerative joint disease, and left knee instability. The Veteran's service connected knee disability is currently assigned multiple ratings based on limited range of motion. Throughout the course of the appeal, a 10 percent rating has been assigned for limitation of flexion under Diagnostic Code 5260. Additionally, a 10 percent rating has been assigned for limitation of extension under Diagnostic Code 5261, effective May 28, 2021. From March 2, 2016 to July 1, 2016, the Veteran was assigned a 100 percent rating for left knee patellofemoral syndrome due to meniscectomy and arthroscopic ligament repair surgery under 38 C.F.R. § 4.30. Under VA regulations, normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5260 provides for the assignment of a 0 percent rating when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A rating of 20 percent is assigned when leg flexion is limited to 30 degrees, and a rating of 30 percent is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 pertains to limitation of leg extension. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating is warranted where extension is limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5257 slight recurrent subluxation of the right knee warrants a 10 percent rating. In order to qualify for a 20 percent rating the Veteran would have to exhibit moderate recurrent subluxation or lateral instability; and in order to qualify for a 30 percent rating the Veteran would have to exhibit severe recurrent subluxation of lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. The amended Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. For recurrent subluxation or 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 one of the following: (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 maximum 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. For 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 maximum 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. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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). Concerning disabilities of the knee, separate ratings under Diagnostic Code 5260 for limitation of flexion and Diagnostic Code 5261 for limitation of extension, may be assigned for disability of the same joint. VAOGCPREC 9-2004 (2004), 69 Fed. Reg. 59990 (2004). In addition, a claimant who has both limitation of motion and instability of a knee may be granted separate ratings under Diagnostic Codes 5003, or Diagnostic Codes 5260 and 5261, and 5257. However, any separate rating must be based on additional compensable disabling symptomatology. VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (1998). 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Medical treatment records from January 2014 through September 2021 show ongoing complaints of, and treatment for left knee pain. The medical treatment records also show complaints of popping, shooting pain, and swelling on flexion. In a December 2014 VA examination noted palpable and audible popping left patella on repetitive left knee flexion/extension movement. Extension and flexion of the left knee were from 0 degrees to 130 degrees. However, objective evidence of painful motion begins at 85 degrees. Repetitive motion resulted extension and flexion of left knee were from 0 degrees to 130 degrees. Functional loss limitation in range of motion of left knee were less movement than normal, pain on movement, swelling, instability of station, disturbance of locomotion, and interference with sitting, standing and weight-bearing. However, muscle strength testing resulted in normal strength left knee flexion/extension and joint stability tests of the left knee were normal. On March 2, 2016, the Veteran underwent a left knee meniscectomy and arthroscopic ligament repair surgery. A March 2016 rating decision granted a 100 percent for the meniscectomy surgery per 38 C.F.R. § 4.30. At the August 2019 Board hearing, the Veteran testified that his left knee is not stable, and it buckles at times and he must wear a knee brace to help support it. In a January 2020 VA examination, the VA examiner noted that the Veteran stated he cannot run, he cannot walk for a long period of time and is unable to use stairs and that during flare-ups the pain has increased. The range of motion test, repetitive use, repetitive use over time, and flare-ups tests resulted left knee flexion 0 degrees to 110 degrees and extension 110 degrees to 0 degrees. There was pain during the tests and the Veteran cannot fully flex his knee. There was no joint instability issue reported. There as meniscal tear of the left knee. The examiner noted a scar that was neither painful nor unstable on the left knee. The Veteran used a knee brace on a regular basis and was noted as previously having an arthroscopic procedure. In a May 28, 2021 VA examination report, the VA examiner examined the Veteran in person as well as reviewed the record. The VA examiner reported the following: flare ups three times a week and are moderate to severe and last up to 24 hours. They are precipitated by standing, walking, and sitting for long periods. The veteran also stated the left knee gives out sometimes, especially when going up or down stairs. The exam also reports evidence of pain on active motion, passive motion, objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Location is left patella with severity as moderate. Functional loss is noted with pain, fatigability, weakness, and lack of endurance. Furthermore, the VA examination resulted that the Veteran's service-connected left knee patellofemoral disability had a flexion endpoint of 110 degrees and extension endpoint of 10 degrees. The Board finds that the preponderance of the evidence is against a rating greater than 10 percent for service-connected left knee patellofemoral syndrome based on limitation of flexion under Diagnostic Code 5260 and limitation of extension under Diagnostic Code 5261. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran's left knee flares-ups at least 3 times a week, it is moderate to severe and it lasts up to 24 hours and the flare-ups are precipitated by standing, walking and sitting for a long period would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. The May 2021 Examination conducted a Range of Motion (ROM) and Functional Limitation test, testing under Active Range of Motion, Passive Range of Motion, Repetitive use, Repeated use over time, but not during flare-ups. The tests resulted that the Veteran's service-connected left knee patellofemoral disability had a flexion endpoint of 110 degrees and extension endpoint of 10 degrees. As the record does not show limitation of flexion to 30 degrees of less a higher rating under Diagnostic Code 5260 is not warranted at any time during the course of the appeal. With respect to limitation of extension, the record prior to May 28, 2021 shows that the Veteran's extension was not limited to 10 degrees or more. Accordingly, the criteria for a separate compensable rating based on limitation of extension under Diagnostic Code 5261 is not warranted prior to May 28, 2021. Likewise, the evidence does not show limitation of extension to 15 degrees or greater during the period from May 28, 2021. Accordingly, the criteria for a rating greater than 10 percent based on limitation of motion are not met for the period beginning on May 28, 2021. However, the Board finds that, the Veteran qualifies for additional separate ratings under Diagnostic Codes 5257 and 5259. Regarding the meniscectomy, the Veteran is entitled to a separate rating under Diagnostic Code 5259 for symptoms that he still experiences post-removal of the meniscus. The Veteran had a meniscectomy on March 2, 2016. Since that time, the Veteran has reported swelling, joint pain, and joint effusion in the left knee. Since the meniscus was removed from the Veteran's knee, but he still experiences symptomatic pain and other symptoms, he is entitled to an additional separate rating under Diagnostic Code 5259. The Board finds that those symptoms are in addition to the separately rated instability and limitation of motion. Therefore, the criteria for a 10 percent rating under Diagnostic Code 5259 are met and a rating for the left knee pursuant to Diagnostic Code 5259 as of March 2, 2016. In considering the applicability of the appropriate diagnostic codes, the Board finds that Diagnostic Code 5256 for rating ankylosis of the knee; Diagnostic Code 5262 for rating impairment of the tibia and fibula; and Diagnostic Code 5263 for rating genu recurvatum are not applicable, as the medical and competent lay evidence does not show that the Veteran has had any of those disabilities. Lastly, the Veteran does not have a diagnosis for arthritis. Therefore, Diagnostic Codes 5003 and 5010 are inapplicable. As noted previously, 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). 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 amended 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 pre-amended regulation is more favorable, VA can apply the earlier version of the regulation for the period both prior to and from the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the claim under the pre-amended criteria prior to February 7, 2021 and both the pre-amended and amended rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Veteran's service-connected left knee patellofemoral syndrome is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. Under the version of Diagnostic Code 5257 in effect prior to February 7, 2021, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. 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). Turning first to the criteria in effect at the time the Veteran's claim was filed, the Board finds that the record including the Veteran's June 2016 Medical Treatment Record support a finding of "moderate" recurrent lateral instability. The Veteran submitted many credible statements during the period on appeal asserting that his knees were, popping and cracking. He ultimately reported at his August 2019 Board and May 2021 VA examiner that his left knee gives out sometimes, especially when going up or down stairs. He also describes inability to sit for long periods without increased swelling, throbbing and pain, there are fluid in his knee. He is unable to bend, stoop, twist or walk without a cane and experiencing pain, the stiffness in his left knee limits his range of motion. Of note, the Veteran's VA examinations show a history of assistive knee devices, to include knee braces and constant use of a prescribed cane. The Veteran's medical record reports that he constantly uses a brace for his left knee as an assistive device. While, the examiners did not report clinical findings of bilateral knee instability, the Board finds that the record including the Veteran's statements support a finding of "moderate" recurrent lateral instability under pre-February 7, 2021 DC 5257 criteria. The Board finds that the evidence of record shows the overall recurrent subluxation or lateral instability in the Veteran patellofemoral of the left knee most closely approximates a severity level that is no more than moderate. As noted, the Veteran has constantly used assistive devices such as braces and cane post operation and he has experienced his left giving out. Clinical testing has not found significant instability that would support a rating greater than 20 percent based on the regulations in effect at the time the Veteran filed his claim. For example, at the 2014, 2020 and 2021 VA examinations, the examiners found no instability on clinical testing. Furthermore, the Board finds that the evidence of the record shows that the overall recurrent lateral instability in the Veteran patellofemoral of the left knee does not rise to severe, that is, of a great degree. As noted, the Veteran stated that his knee buckles at time after his knee surgery and he does use a brace and cane. However, all his medical records reports that his left knee is stable. His June 2021 VA examination reports that the Veteran does not have recurrent patellar dislocation. For the stated reasons, a 30 percent for instability of service-connected left knee patellofemoral disability is not warranted. As such, a 20 percent rating, but not higher is granted for instability under the regulations in effect as of March 2, 2016. Regarding the version of Diagnostic Code 5257 in effect since February 7, 2021, to warrant a 30 percent based on recurrent subluxation or instability, the evidence must show unrepaired or failed repair of a complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device and bracing for ambulation. While the Veteran reports using both bracing on occasional use of a cane, the report of the May 2021 notes that the only assistive device prescribed for ambulation was a cane. Accordingly, the criteria for a 30 percent rating under the new regulations based on instability are not met. With respect to patellar instability, the record does not show that the Veteran has patellar instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or walker. Accordingly, the criteria for a 30 percent rating under the new regulations based on patellar instability are not met. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating greater than 10 percent for service-connected left knee patellofemoral syndrome limitation of flexion under Diagnostic Code 5260, a separate compensable rating for limitation of extension prior to May 28, 2021, and a rating greater than 10 percent for limitation of extension from May 28, 2021. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. However, the Board further finds that the evidence supports the assignment of a separate 20 percent from March 2, 2016, under Diagnostic Code 5257 for instability, and a separate rating of 10 percent as of March 2, 2016, under Diagnostic Code 5259. The Board finds that the preponderance of the evidence is against the assignment of any additional separate compensable ratings or any higher ratings prior to September 22, 2014. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Le, Tai D. 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.